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Full text of "North Carolina Register v. 1 no. 5 (8/15/1986)"

The 



tAW UBRARY 



NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



GENERAL STATUTES 
EXECUTIVE ORDERS 
ADMINISTRATIVE ORDERS 
nNAL DECISION LETTERS 
STATEMENTS OF ORGANIZATION 
PROPOSED RULES 
FINAL RULES 
LIST OF RULES AFFECTED 



ISSUE DATE: AUGUST 15, 1986 
Volume 1 • Issue 5 • Pages 223-379 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODI 



NORTH CAROLINA REGISTER 

The Nonh Carolina Register is published monthly and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and amend- 
ments filed under Chapter 1 508 must be published in the Register. 
The Register will typically comprise approximately one hundred 
pages f)er issue of legal text. 

State law requires that a copy of each issue be provided free 
of charge to each county in the state and to various state officials 
and institutions. The North Carolina Register is available by 
yearly subscription at a cost of ninety-five dollars (S95.00) for 
12 issues. 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, P. O. 
Drawer 11666, Raleigh, N. C. 27604, Attn: Subscriptions. 



ADOPTION, AMENDMENT, AND REPEAL OF RULES 

An agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include a reference to the Statutory 
Authority for the action; the time and place of the public hearing 
and a statement of how public comments may be submitted to 
the agency either at the hearing or otherwise; the text of the 
proposed rule or amendment; and the proposed effective date. 

The Director of the Office of Administrative Hearings has 
authority to publish a summary, rather than the full text, of any 
amendment which is considered to be too lengthy. In such case, 
the full text of the rule containing the proposed amendment will 
be available for public inspection at the Rules Division of the 
Office of Administrative Hearings and at the office of the 
promulgating agency. 

Following publication of the proposal in the North Carolina 
Register, at least 60 days must elapse before the agency may take 
action on the proposed adoption, amendment or repeal. 

When final action is taken, the promulgating agency must file 
any adopted or amended rule with the Office of Administrative 
Hearings. If it differs substantially from the proposed form 
published as part of the public notice, the adopted version will 
again be published in the North Carolina Register. 

A rule, or amended rule, cannot become effective earlier than 
the first day of the second calendar month after the adoption is 
filed. 

Proposed action on rules may be withdrawn by the pro- 
mulgating agency at any tirne before final action is taken by the 
agency. 



TEMPORARY RULES 

Under certain conditions of an emergency nature, some 
agencies may issue temporary rules. A temporary rule becomes 
effective when adopted and remains in effect for the period 
specified in the rule or 120 days, whichever is less. An agency 
adopting a temporary rule must begin normal rule-making 
procedures on the permanent rule at the same time the temporary 
rule is adopted. 



NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is 
compilation and index of the administrative rules of 25 stat 
agencies and 38 occupational licensing boards. The NCA( 
comprises approximately 15,000 letter size, single spaced page 
of material of which approximately 35% is changed annually 
Compilation and publication of the NCAC is mandated by G S 
150B-63(b). 

The Code is divided into Titles and Chapters. Each state agenc 
is assigned a separate title which is further broken down 
chapters. Title 2 1 is designated for occupational licensing boards 

The NCAC is available in two formats. 

( 1 ) In looseleaf pages at a minimum cost of two dollars an 
50 cents ($2.50) for 10 pages or less, plus fifteen cen 
($0.15) per each additional page. 

(2) On microfiche. The microfiche edition is revised sem 
annually (March and October) and can be purchased fc 
forty dollars ($40.00) per edition. Due to the volurr 
of the Code, the complete copy can only be purchased c 
microfiche. The NCAC on microfiche is updat 
monthly by publication of a "List of Rules Affected 
which sets out rules filed the previous month, the actic 
taken, and the effective date of the change. This list 
published in the North Carolina Register. 

Requests for looseleaf pages of rules or the NCAC ( 
microfiche should be directed to the Office of Administrati> 
Hearings. 



NOTE 

The foregoing is a generalized statement of the procedures 
be followed. For specific statutory language, it is suggested th 
Articles 2 and 5 of Chapter 150B of the General Statutes I 
examined carefully. 



CITATION TO THE NORTH CAROLINA REGISTEI 

The North Carolina Register is cited by volume, issue, paj 
number and date. 1:1 NCR 101-201, April 1, 1986 refers 
Volume 1, Issue 1, pages 101 through 201 of the North CaroUi 
Register issued on April 1, 1986. 



North Carolina Register. Published monthly by the 
Office of Administrative Hearings, P. O. Drawer 11666, 
Raleigh, North Carolina 27604, pursuant to Chapter 150B 
of the General Statutes. Subscriptions ninety-five dollars 
($95,001 per year. 

North Carolina Administrative Code. Published in 
March and October by the Office of Administrative 
Hearings. P. O. Drawer 1 1666, Raleigh, North Carolina 
27604, pursuant to Chapter 150B of the General Statutes. 
Subscriptions forty dollars ($40.00) per edition. 



NORTH CAROLINA REGISTER 




Office of Administrative Hearinci' 
P. 0. Drav/er 11666 
Raleigh, lie 27634 
(919) 733 - 2G73 



Staff: 

Robert A. Melott, 

Director 
Janca R. Scnrcella, 

Deputy Direccor 
Holly Macon. 

Codifiir of Rules 
Gonio Rcjers, 

Executive Legal Specialist 
Ruoy Creech, 

Fl.:blicat^ons Coord ina Lor 
[yrt.'.ce Eecoat, 

Clerk 
Mary Fov;ler, 

'.'ordtirocossor 
Tcrcr^a Jolincon, 

V.'ordprococcor 
Tanii-iy I'col-!, 

Records Cleric 



ISSUE CONTENTS 

I. GENER-^L STATUTES 223 

II. EXECUTIVE ORDERS 247 

III. ADMINISTRATIVE ORDERS 248 

IV. FINAL DECISION LETTERS 249 

V. STATEMENTS OF ORGANIZi\TION ... 250 

VI. PROPOSED RULES 255 

VII. FINAL RULES 347 

VIII. LIST OF RULES AFFECTED 374 

IX. CU.^UL-^TIVE INDEX 377 



NORTH CAROLINA REGISTER 
Publication Deadlines aiid Schedules 
(April 1935 - March 1937) 



Issue 


Last Day 


Lar.t Day 


Earlic-.t 


Earlies b 


Earliest 


Date 


for 


for 


DaLc for 


Date for 


Effective 




Filing 


Electronic 


Public 


Adoption 


Date 






Filing 


iicarii-.g 


by Agency 




04/15/86 


03/25/86 


04/01/C6 


05/15/85 


05/ 14/86 


08/01/86 


05/15/86 


04/2^1/86 


05/01/36 


05/14/85 


07/14/86 


09/C1/SG 


06/16/85 


05/27/36 


06/03/36 


07/16^86 


08/15/85 


10/01/86 


07/15/85 


06/25/85 


07/02/85 


08/14/85 


9/13/35 


1 1/01/86 


03/15/35 


07/20/86 


08/04/86 


09/14/86 


10/14/85 


12/01/86 


09/15/86 


08/26/36 


09/02/86 


10/15/86 


11/14/86 


01/01/87 


10/15/86 


09/25/85 


10/02/86 


1 1/14/86 


12/14/35 


02/01/87 


n/14/85 


10/23/36 


10/30/86 


12/14/86 


01/13/87 


03/01/87 


12/15/86 


1 1/25/86 


12/02/86 


1/14/87 


02/13/87 


04/01/87 


01/15/87 


12/29/86 


01/05/87 


02/14/37 


03/16/C7 


05/01/87 


02/16/87 


01/26/37 


02/02/37 


03/18/87 


04/17/37 


06/01/87 


03/16/87 


02/23/87 


03/02/87 


04/15/87 


05/15/37 


07/01/87 



G ENERAL STAT U TES OI- NORTH CAROLINA 

[The following excorpt contains the provisions tliat establish the 
AdiTiini'itrativo Rules Review Commission.] 



CHA 
SESSION LAWS 1935 



Sec. 32. Article 1 of Chapter 
1 43B of the General Statutes is 
amended by adding a now Part 3 
to read: 

"Part 3. Administrative Rules 
Rcviov; Commission. 

1 4 3B - 3 . Dof ini tionr, . 
--As used in this Part » the 
following definitions apply: 

"Agency" means an agency 
subject to the provisions of 
Article 2 of Chapter 150B of the 
General Statutes. 

"Con.'nission" means the 
Administrative Rules Review 
Comr;iission . 

"Rule" means a "rule" , as 
defined in G.S. 150B-2(8a). 

" 1 4oB-30 . 1 . Administrative 
Rule 



Review Co m mission crea ted. 
— The Adi.iinistrntive Rules 
Reviovj Commission is created. 
The Commission shall consist of 
eight members to be appointed by 
tiie General Assomljiy, four upon 
tlic recomm.ondat ion of the 
President of the Senate. and 
four upon the recommendation of 
the Speaker of tlic House of 
Representatives. These 

appointments shall be made in 
accordance with G.S. 120-121, 
and vacancies in those 
npijointments sliall be filled in 
accordance vjitli G.S. 120-122. 
All appointees shall serve 
two-year terms . Any appointment 
to fill a vacancy on the 
Commicsion created by the 
resignation. dismissal, 

ineligibility, death, or 
disi'.bility of any member shall 
be for the balance of the 
unexpired term. The chairman 
shall be elected by the 
Commission. i.iid he shall 
designate the times and places 
at v/hich t!io Commission shall 
meet. The Commission shall meet 
at least once a month. A quorum 
of the Commission shall consist 
of five members of the 
Commission . 

Members of tlie Commission who 
are not officers or or;nloyecs of 
tiio State shall receive 
co.npensat ion of two hundred 
dollars (C 200. 00) for each day 
or part of a day of service plus 
reimbursement for travel and 
subsistence e::pcnsc3 at the 



PTER 1020 
(REGULAR SESSION 198^) 

rates specified in G.S. 138.5. 
Members of the Commission wlio 
arc officers or employees of tlie 
State shall receive 
reimbursement for travel and 
suJjsistcnce at the rate set out 
in G.S. 138-6. 

Tlie Office of Administrative 
Hearings shall provide 
administrative and support staff 
to the Commission to assist it 
in performing its duties. 

143B-30.2. Review of rules. 
(a) Rules adopted by an 
agency on or after September 1 . 
1986. shall be submitted to the 
Administrative Rules Review 
Com.mission, which shall review 
the rule to determine whether 
it: 

( 1 ) Is within the authority 
delegated to the agency by 
the General ,'\ssembly; 

(2) Is clear and unambiguous; 

(3) Is reasonably necessary 
to enable the administrative 
agency to perform a function 
assigned to it by statute or 
to enable or facilitate the 
implementation of a program 
or policy in aid of which 
the rule was adopted. 

Tlie Commission sliall review a 
rule submitted to it not later 
than the last day of the first 
calendar month following the 
month when the rule was 
submitted. The Commission, by a 
n.ajority vote of the members 
present and voting, may extend 
the time for review of a rule by 
60 days to obtain additional 
information on a rule. The 
Commission shall file notice of 
the extension of time for review 
of a rule vjith the agency and 
the Director of the Office of 
Administrative Hearings. An 
agejicy may not present a rule 
for filing with the Director of 
the Office of Administrative 
Hearings under G.S. 150B-59 
unless the rule has been 
reviewed by the Commission as 
provided in this section. 

(b) If the Commission reviews 
a rule and determ.ines that it is 
within tlie authority delegated 
to tlie agency. is clear and 
unambiguous, and is reasonably 
necessary, the Commission shall 
note its approval and return the 
rule to the agency. The agency- 
nay then file the rule with the 
Director of the Office of 



NORTH CAROLINA REGISTER 



223 



Administrative Hcarincrs under 
G.S. 150B-59, and the rule chall 
become effective as provided in 
that section . 

Cc) If the Commission finds 
that an agency did not act 
within the authority delegated 
to it in promulgating a rule or 
a part of a rule, or that a rule 
is not clear and unambiguous, or 
that a rule is unnecessary, the 
Commission shall object and 
delay tlie filing of the rule or 
part of the rule under G.S. 
150B-59 for a period not to 
exceed 90 clays. The Commission 
shall send to tlie agency, the 
Governor, the President of the 
Senate, the Speaker of the Hour:e 
of Representatives, and the 
director of the Office of 
Administrative Hearings, a 
written report of the objection 
and delay of the rule or its 
part and the reasons for the 
delay. An agency may not 
present a rule or part of a rule 
that has been delayed to tlio 
Director of the Office of 
Administrative Hearing::; for 
filing under G.S. 150B-59, and a 
rule or its part that is delayed 
is not "effective", as defined 
in G.S. 150B-2(2a) . 

(d) Within 30 days after 
receipt of the Commission's 
written report, tlie agenc}/ shall 
either ( 1 ) revise the rule to 
remove the cause of the 
objections of tlio Commission and 
return tlie revised rule to the 
Commission or (2) return the 
rule to the Commission without 
change with the Commission's 
objections attached. Tlie 
Commission shall determine 
whether a revision removes its 
objections to the rule. 

(e) If the Commission 
determines that a revision of a 
rule has removed tlie 
Commission's objections, the 
Commission sliall note its 
approval and return the rule to 
the agency. The agency may then 
file the rule v.'ith the Director 
of the Office of Administrative 
Hearings under G.S. 150B-59> and 
the rule shall becom.e effective 
as provided in that section. 

(f) Regardless of vjliethcr the 
agency returns the rule to the 
Commission without change 
instead of revising the rule to 
remove the Commission's 
objections or v;hetIior the 
Commission determines that a 
revision of a rule hns not 
removed its objections, tlio 
Commission shall note its 
approval of the rule once 90 
days have passed since the 
Commission objected and delayed 
tlic filing of t!ie rule or part 



of the rule pursuant to G.S. 
1433-50. 2(c) and shall return 
the rule to the agency. 
Hov;evcr. if the agency returiis 
the rule to the Commission 
v;ithout change instead of 
revising the rule to remove the 
Commission's objections, or if 
the Commission determines that a 
revision of a rule has not 
removed its objections. the 
Commission's approval shall be 
accompanied by a notation of the 
Commission's objection to the 
rule. The agenci" ma3,' then file 
the rule with tlie Director of 
the Office of Administrative 
Hearings under G.S. 150B-59, and 
the rule shall become effective 
as provided in that section. If 
the agcn-;y did not remove the 

the 
the 
the 



objections to 



Lommission 

rule or part of the rule. 
Commission may send to 
President of the Senate and tlie 
Speaker of the House of 
Representatives a v.'rittcn report 



of 



objections to the rule 



Tlierenf ter , if the General 
Asseir.bly enacts legislation 
disapproving the rule, the rule 
shall no longer be effective. 

The Legislative Services 
Officer s.hall send a copy of any 
lavj disapproving a rule to the 
agency and the Director of the 
Office of Administrative 
Hearings as soon as a copy is 
available . 

(g) While the filing of a rule 
or its part is delayed. the 
agency that pro;r.ulgatod it may 
not adopt another rule, 
including a temporary rule, that 
has substantially identical 
provisions to those for vjhich 
the Com.mission delayed the 
filing of the original rule or 
part of a rule . 

(h) The filing of an 
amendment to a rule places the 
entire rule before the 
Commission for its reviev;. 

" 143B-30.3. He aring s. 

(a) Notv.'ithstanding G.S. 
143B-30 .2(a) , th3 chairman of 
the Co.mmission may at any tixo 
before the time for review set 
out in that subsection expires 
call a public hearing on any 
rule or part of a rule upon the 
recommendation of the Commission 
or on the motion of any member 
of tlie Commission. Within 60 
days after the public hearing, 
the Commission may find that the 
agency did not act within the 
authority delegated to it in 
promulgating the rule, or that 
the rule is not clear and 
unambiguous, or that the rule is 
unnecessary, and object to and 
delay the rule in accordance 
witli G.S. 143E-30.2. 



224 



NORTH CAROLINA REGISTER 



(b) At least 15 clays before 
tlic public hearing, the 

Commission sliall give notice of 
lac hcarincj to tlic rulomalciiig 
agency, to ..".ny person wlio 
requests a copy of the notice, 
anc! to any person who may be 
affected by th_ rule in the 
opinion of the chairman of tlie 
Commission . 

" 1 433-30. 4. E viden ce. 
--Evidence of the Commission's 
failure to object to and delay 
tlio filing of a rule or its part 
shall bo inadmissible in all 
civil or cx'ininal trials or 
other proceedings before courts, 
adininistrativc agencies^ or 

otlier tribunals." 



X 



Sec. 37. Each agency subject 
to Articles 2 and 5 of Chapter 
150B of tlie General Statutes 
sliall, not later than September 
1, 1986, review its rules as 
required by Section 3 of Cliaptcr 
746 of the 1985 Session Lavjs 
except that the report required 
tlicroin shall be filed with the 
/.dministrat ive Rules Rcvievj 



Commission and not the General 
Assembly. An agency that 
substantially complied with 
Section 3 of Chapter 7'': 6 of tlie 
1985 Session Lavjs cliall not 
refilc the report filed with the 
General Assembly but shall 
supplement that rcjiort by filing 
a similar report with the 
Administrative Rules Review 
Commission as to any rules that 
became effective after the 
preparation of the original 
report. The Legislative 
Services Officer shall deliver 
all reports filed in compliance 
with Section 3 of Chapter 746 of 
the 1985 Session Laws to the 
cliairman of the Administrative 
Rules Review Commission. The 
chairman may require an agency 
to file a new report if there is 
any dispute as to whether one 
lias been filed or whether one 
that has been filed complies 
with the requirements set forth 
in that section. 



[Effective upon ratification/ 
July 16, 1986.] 



NORTH CAROLINA REGISTER 



225 



[Chapter 1022. Session Laws of 1985 (1586 Regular Session) made 
numerous technical and clarifying amoiidmcr.fcs to Chapter 7A and 1503 of 
the General Statutes. Following is complete text of Chapter 150B and 
the affected sections of Chapter 7A ar r.r.onHcd . ] 

CHAPTER iSOB 
ADMINISTR.ATIVE PROCEDURES ACT 

L'orth Carolina and its 
constituent or affiliated 

15CB-1 . P olicy and scope. boards, agencies, arid 

— (a) The policy of the State institutions, but The University 

is that the three pov.'ers of of Korth Carolina and its 

govern.T.ent . legislative, constituent or affiliated 

executive, and judicial, are, boards, agencies, and 

and should remain, separate. inr;t itut ions arc sp'^cif icall3'' 

The intent of t'lis Ciiapter is e.xeir.ptcd fron the remaining 

to prevent the commiiigling of provisions of this Chapter, 

those powers in any Article 4 of this Cliaptcr shall 

administrative agency and to not apply to the State Banking 

ensure that the functions of Commission, tlie Commissioner of 

rule r:aking, investigation. Banks, the Savings and Loan 

advocacy, and adjudication are Division of the Department of 

not all performed by the sa.^.ie Commerce, and the Credit Union 

person in the administrative Division of the Department of 

process. Cor.mcrce. 

(b) The purpose of this Article 3 of t.his Chapter sliall 
Chapter is to establish as not apply to agencies governed 
nearly as jjossible a uniform by the provisions of Article 3A 
system of administrati\'c rule of this Chr.ptcr, as set out in 
making and adjudicatory G.S. 150B-38(a). 

procedures for State agencies. 150B~2. Definitions . 

(c) This Chapter shall apply --As used in this Chapter, 
to every agency, as defined in (1) ''Agency'' means any 

G.S. 150E-2(1), e.xcept to the agency, institution, board, 

extent and in the particulars commission, bureau, 

that any statute, including department, division, 

subsection (d) of this section, council, member of the 

makes specific provisions to the Council of State, or officer 

contrary. of the State government of 

(d) The follovjing are the State of Kortli Carolina 
specifically exempted from the but docs not include any 
provisions of this Chapter: the agency in tlie legislative or 
Administrative Rules Review judicial branc!i of the State 
Com.mission, the Employi-ci^t government; and does not 
Security Commission, the include counties, cities, 
Industrial Commission, the to\;ns. villages, other 
Occupational Safety and Health municipal corporations or 
Reviev; Board, and the Utilities political suljdivisions of 
Commission. the State or any agencies of 

The Morth Carolina National such subdivisions, or local 

Guard is exempt from the boards of education, other 

provisions of this Chapter in local pu);lic districts, 

e.xorcising its court-martial units or bodies of any kind, 

jurisdiction. or private cori^orations 

The Department of Correction is created by act of tlie 

exempt from the provisions of General Assembly, 

this Chapter, except for Article (2) "Contested case" means an 

5 of this Chapter and G.S. administrative proceeding 

150B-13 which shall apply. pursuant to this Chapter to 

Articles 2, 3, and 3A of this resolve a dispute between an 

Chapter shall not apply to the agency and nnotlior person 

Department of Transportation in tliat involves the person's 

rule making or administrative riglits, duties, or 

hearings as provided for by privileges, including 

Chapter 20 of the General licensing or the levy of a 

Statutes or to the Department of monetary penalty. 

Revenue. "Contested case" does not 

Article A of this Chaptej', include rule.n;ikinn , 

governing judicial reviov; of decl.ii-atory rulings, or llio 

final administrative decisions, av;ard or ['.enial of a 

shall apply to Tlio University of scliolarship or grant. 

226 NORTH CAROLINA REGISTER 



(2a) "Effective" means that a 
valid I'ulc has been filed as 
required by G.S. 150B-59 
and, if applicable, that the 
time specified in that 
section has elapsed. A rule 
tliat is effective is 
enforceable to tlie extent 
permitted by law. 

(2b) "Hearing officer" means 
an administrative law judge 
appointed under G.S. 7A-753 
or any agency employee or 
person or group of persons 
designated by an agency to 
preside in a contested case 
hearing ur.dor this Chapter. 

(3) "License" means any 
certificate, permit or otlier 
evidence, by whatever name 
called, of a right or 
privilege to engage in any 
activity, except licenses 
issued under Chapter 20 and 
Subchapter I of Chapter 1 05 
of the General Statutes and 
occupational licenses. 

(4) "Licensing" means any 
administrative action 
issuingr failing to issue, 
suspending, or revoking a 
license or occupational 
license. 'Licensing' docs 
not include controversies 
over i.'hethor an examination 
w?s fair or v.'hether the 
applicrit passed the 
examination . 

(4a) "Occupational license" 
means any certificate, 
permit, or other cvidc;\cc, 
by whatever name called, of 
a right or privilege to 
engage in a profession, 
occupation, or field of 
endeavor that is issued by 
an occupational licensing 
agency . 

(4b) "Occupational licensing 
agency" ~.eans any board, 
commission, committee or 
other agency of the State of 
North Carolina which is 
established for the primary 
purpose of regulating the 
entry of persons into, 
and/or the conduct of 
persons v;ithin a particular 
profession, occupation or 
field of endeavor, and wliich 
is authorized to issue and 
revolce licenses. 

'Occupational licensing 
agency' does not include 
State agencies or 
departments which may as 
only a part of their regular 
function issue permits or 
licenses . 

(5) "Party" means any person 
or agency named or adsnitted 
as a party or properly 
seeking as of right to be 
admitted as a party and 



includes the agency as 
approjjriate; provided this 
subdivision shall not be 
construed to permit the 
hearing agency or any of its 
officers or employees to 
appeal its ovm decision for 
initial judicial review. 

(6) "Person aggrieved" means 
any person or group of 
persons of common interest 
directly or indirectly 
affected substantially in 
his or its person, property, 
or employment by an 
administrative decision. 

(7) "Person" means any 
natural person, partnership, 
corporation, body politic 
and any unincorporated 
association, organization, 
or society which may sue or 
be sued under a common name. 

(8) "Residence" means 
domicile or principal place 
of business . 

(8a) "Rule" means any agency 
regulation, standard or 
statement of general 
cpplicability that 

implements or interprets 
laws enacted by the General 
Assembly or Congress or 
regulations promulgated by a 
federal agency or describes 
the procedure or practice 
requirements of any agency 
not inconsistent with laws 
enacted by the General 
A^=JSombly. The term includes 
the amendment or repeal of a 
prior rule. The term does 
not include the following: 

a. Statements concerning 
only the internal 
management of an agency or 
group of agencies, 
including policies and 
procedures manuals, if 
sucli a statement does not 
directly or substantially 
affect the procedural or 
substantive rights or 
duties of persons not 
cnployed by the agency or 
group of agencies. 

b. Budgets and budget 
policies and procedures 
issued by the Director of 
the Budget, by the head of 
a department , as defined 
by G.S. 143A-2 or G.S. 
143B-3, by an occupational 
licensing board, as 
defined by G.S. 93B-1 , or 
by the State Board of 
Elections . 

c. Nonbinding Interpretive 
statements vjithin the 
delegated authority of the 
agency that merely define, 
interpret or explain the 
moaning of a statute or 



NORTH CAROLINA REGISTER 



227 



other provision of law or 
precedent . 

d. A form, the contents or 
substantive requirements 
of which are proscribed by- 
rule or statute or the 
instructions for t}ie 
e.'cccution or use of the 
form . 

e. Statements of agencj- 
policy made in the cojitext 
of anotlier proceeding, 
including : 

1 . declaratory rulings 
under G.S. 150B-17; 

2. orders establishing or 
fixing rates or tariffs. 

f . Statements of agency 
policy, provided that the 
agency policy is not 
inconsistent with any lav; 
enacted by the General 
Assembly, communicated to 
the public by use of signs 
or symbols, concerning: 

1 . the use or creation of 
public roads or bridges; 

2. the boundaries of 
public facilities and 
times v;l"ien public 
facilities are open to 
the public; or 

3. safety in use of 
public facilities. 

g. Statements that set 
forth criteria or 
guidelines to be used by 
the staff of an agency in 
performing audits, 
investigations, or 
inspections; in settling 
financial disputes or 
negotiating financial 
arrangements; or in the 
defense, prosecution, or 
settlement of cases; 

h. Scientific, 

architectural, or 

engineering standards, 

forms, or procedures. 

(9) "Valid" means that the 

rule has been adopted 

pursuant to the procedure 

required by law. A valid 

rule is unenforceable until 

it becomes effective. 

150B-3. Special provisions 

on licensing. --(a) When an 

applicant or a licensee makes a 

timely and sufficient 

application for issuance or 

renev/al of a license or 

occupational license, including 

the payment of any required 

license fee, the existing 

license or occupational license 

does not expire until a decision 

on tlie application is finally 

made by the agency, and if tlio 

application is denied or tlie 

terns of the new license or 

occupational license are 

limited, until the last day for 

applying for judicial review of 



tlie agency order. This 
subsection does not affect 
agency action summarily 
suspending a license or 
occupational license under 
sub.-:cct ioiis (b) and (c) of this 
sect ion . 

(b) Before tlio commencement 
of proceedings for the 
suspension, revocation, 
annulment, withdrawal, 
recall, cancellation, or 
amendment of any license 
otlier than an occupational 
license, the agency shall 
give notice to the licensee, 
pursuant to the provisions 
of G.S. 150B-23. Before the 
commencement of such 
proceedings involving an 
occupational license. the 
agency shall give notice 
pursuant to the provisions 
of G.S. 150B-38. In either 
case, the licensee shall be 
given an opportunity to show 
compliance with all laviful 
requirements for retention 
of the license or 
occupational license. 

(c) If the age2icy finds that 
the public liealtli, safety, 
or v/clfaro requires 
emergency action and 
incorporates this finding in 
its order. summary 
suspension of a license or 
occupational license nay lie 
ordered effective on the 
date specified in the order 
or on service of the 
certified copy of the order 
at the last known address of 
the licensee, whichever is 
later, and effective during 
the proceedings . The 
proceedings sJiall be 
promptly commenced and 
determined . 

Nothing in this subsection 
shall be coiistrued as amending 
or repealing any special 
statutes, in effect prior to 
February 1. 1976, which provide 
for the summary suspension of a 
license . 

Article 2. 
Rule Making. 

1 5 B - 9 . Minimrm procedura l 
rcquirem'-'nts : l i mitation.'; on 
rule-maJcinq authority: criminr-l 
sanction? nut)iorizcd . --(a) It 
is the intent of this Article to 
establish basic minimum 
procedural requirements for the 
adoption, amendment, or repeal 
of administrative rules. Except 
for temporary rules which are 
provided for in G.S. 150B-13, 
the provisions of tliis Article 
arc applicable to tlic exercise 
of any rule-making autliority 
ccnf erred by any statute, but 
notliing in this Article repeals 



228 



NORTH CAROLINA REGISTER 



or diminishes additional 
requirements imposed by law or 
any summary power granted by law 
to t)ie State or any State 
agency. No rule hereafter 
adopted is valid unless adopted 
in substantial compliance v.'ith 
this Article . 

(b) Each agency shall adopt, 
amend, suspend oi' repeal its 
rules in accordance with the 
procedures specified in tliis 
Article and pursuant to 
authority delegated by law 
and in full compliance v;ith 
its duties and obligations. 
No agency may adopt any rule 
that implements or 
interprets any statute or 
other legislative enactment 
unless the power, duty, or 
authority to carry out the 
provisions of the statute or 
enactment is specifically 
conferred on the agency in 
the enactment , nor may any 
agency make any rule 
enlarging the scope of any 
trade or profession subject 
to licensing. 

(c) The pov;er to declare vihat 
shall constitute a crime and 
how it shall be punislied and 
the power to establish 
standards for public conduct 
are vested exclusively in 
the Geueri-1 Assembly. I^o 
agency may adopt any rule 
imposing a criminal penalty 
for any act or failui'e to 
act, including the violation 
of Einy rule, unless the 
General Assembly authorizes 
a criminal sanction and 
specifies a criminal penalty 
for violation of th.c rule. 

(d) No agency may adopt as a 
rule tlic verbatim te.xt of 
any federal or North 
Carolina statute or any 
federal regulation, but an 
agency may adopt all or any 
part of such te.xt by 
reference under G.S. 
150E-14. 

150B-10. Statements of 
o rqaniza I: j o n and means of access 
to be publishnd. --To assist 
interested persons dealing v;itli 
it, each agency shall, in a 
manner prescribed by the 
Director of tlie Office of 
Administrative Hcax'ings, prepare 
a description of its 
organizatio.i, stating tlic 
process wliorcby the public may 
obtain information or make 
submissions or requests. The 
Director of the Office of 
Administrative Hearings shall 
publish these descriptions 
annually . 

150B-n. Sp ecia l 

r ocTuircmentr. . --In addition 



to other rule-making 

requirements imposed by law, 

each agency shall : 

(1) Adopt rules setting forth 

the nature and requirements 

of all formal and informal 

procedures available, 

including a listing of all 

forms that are required by 

the agency. Procedures 

concerning only internal 

management which do not 

directly affect the rights 

of or procedures available 

to the public shall not be 

adopted as rules . 

(.2) Make available for public 

inspection all rules and all 

other written statements of 

policy or interpretations 

formulated, adopted, or used 

by the agency in the 

discharge of its functions, 

except those used only for 

internal management of the 

agency . 

(3) Submit to the Director of 

the Budget a summary of any 

proposed rule requiring the 

expenditure or distribution 

of State funds and obtain 

approval of such expenditure 

or distribution of State 

funds prior to publishing 

the notice of public hearing 

required by G.S. 1508-12(2). 

For purposes of this 

subdivision the term 'State 

funds' shall have the same 

meaning as is set out in 

G.S. 143-1 and shall also 

apply to the funds of all 

occupational licensing 

boards included under G.S. 

1508-1. The agency shall 

include a fiscal note with 

any proposed rule, other 

than a temporary rule, so 

submitted. The fiscal note 

shall state what effect, if 

any, the proposed rule will 

have on the revenues, 

expenditures, or fiscal 

liability of the State or 

its agencies or 

subdivisions. The fiscal 

note shall include an 

e.xplanation of hov; such 

effect, if any, was 

computed . 

150B-12. Procedure for 

a doption of r u les. --(a) 

Before the adoption, amendment 

or repeal of a rule, an agency 

shall give notice of a public 

hearing and offer any person an 

opportunity to present data, 

opinions, and arguments. The 

notice shall be given within the 

time prescribed by any 

applicable statute, or if none 

then at least 30 days before the 

public hearing ar.d at least 60 

days before the adoption. 



NORTH CAROLINA REGISTER 



229 



amendment . or repeal of tiio 
rule. The notice shall include: 
( 1 ) A reference to the 

statutory authority under 
v.'hich the action is 
proposed; 
(.2) The time and place of t!ic 
public hearing and a 
statement of the mar.uor in 
v;hich data, opinions, and 
arguments may be submitted 
to tlie agency cither at the 
hearing or at otlicr times by 
any person; and 
(3) The text of the proposed 
rule, or amendment iii the 
form required by G.S. 
150B-63(d2) and the propo3?d 
effective date of the rule 
or amendment . 

(b) The agency shall transmit 
copies of the notice to the 
Director of the Office of 
Administrative Hearings, the 
Attorney General, and the 
Governor . 

(c) The agency shall publish 
the notice in the North Carolina 
Register and as prescribed in 
any applicable statute. 

The ageiicy may also publish the 
notice or a synopsis of the 
notice in other v.'ays selected by 
the agency to give notice to 
persons likely to be affected by 
the proposed rule . Hetliods tliat 
may be employed by the agency, 
depending upon the 
circumstances, include 

publication of t]ie notice in one 
or more newspapers of gonei-al 
circulation or, when 
appropriate, in trade, industry, 
governmental or professional 
publications . 

(d) The public hearing shall 
not be conducted as a contested 
case unless a specific statute 
requires that the proposed rule 
be adopted by adjudicatory 
procedures . 

(e) The proposed rule shall 
not be changed or modified after 
the notice required by this 
section is published and before 
the rule-making hearing. The 
agency shall consider fully all 
written and oral submissions 
respecting the proposed rule. 
Upon adoption of a rule, the 
agency, if requested to do so by 
an interested person either 
prior to adoption or vjithin 30 
days thereafter, shall issue a 
concise statement of the 
principal reasons for cir.d 
against its adoption, 
incorporating tlierciu its 
reasons for overruling the 
considerat ioii urged against its 
adoption. Tlic record in every 
rule-making proceeding under 
this Article shall remain open 
at least 50 days either before 



or after the hearing for the 
purposes of receiving v.'ritten 
comments, and any such comments 
shall be included in the hcariiig 
records. All comments received, 



V7ell 



Miy 



ratement of 



reasons issued to an interested 
person under this section, shall 
be included in the rule-making 
record . 

(f) No rule-making hearing is 
required for the adoption, 
amendment, or repeal of a rule 
vjhich solely describes form.s or 
instructions used by the agency. 

(g) No rule-makir.g hearing is 
required if the Director of the 
Office of Administrative 
Hearings determines that the 
amendment to a rule does not 
clia.nge tlie substance of the rule 
and that the amendment is : 

(1) A rclettcring or 
renumbering instruction; or, 

(2) The substitution of one 
name for another v;hen an 
organization or position is 
renamed; or , 

(3) The correction of a 
citation to rules for lav;s 
wiiich has become inaccurate 
since the rule vias adopted 
because of repealing or 
renumbering of the rule or 
lav; cited; or 

(4) The correction of a 
similar formal defect; or 

(5) A change in information 
that is readily available to 
tlic public such as addresses 
and teleplionc numbers. 

(h) No rule-making hearing is 
required to repeal a rule if the 
repeal of the rule is 
specifically pro^/ided for by tlic 
Constitution of the United 
States, tl.e Constitution of 
North Carolina, a;w federal or 
North Carolina statute, any 
federal regulation, or a court 
order . 

1 5 B - 1 3 . Temporary rules. 
--(a) Except as provided in 
subsection (b) of this section, 
if an agency v.'hich is not 
e;;empted from the notice and 
liearing requirements of this 
Article by G.S. 150B-1 
determines in v;riting tliat : 
CI) Adlieronce to the notice 
and hearing requirements of 
this Article v.'ould be 
contrary to the public 
interest; and that 
(2) Tlie im.mcdiatc adoptioTi, 
amendment, or repeal of a 
rule is necessitated by and 
rcl.Tted to : 
a. A tlircat to public 

healtli, safety, or welfare 
resulting from any natural 
or man-nado disaster or 
other events that 



230 



NORTH CAROLINA REGISTER 



constitute a life 
threatening emergency; 

b. The effective date of a 
recent act of the General 
Assembly or the United 
States Congress; 

c. A federal regulation; or 

d. A court order, the 
agency nay adopt, amend, 
or repeal the rule without 
prior notice or hearing or 
upon any abbreviated 
notice or hearing the 
agency finds practicable. 
The agency must accompany 
its x-ules filing with the 
Director of the Office of 
Administrative Hearings 
and the Governor with the 
agency's written 
certification of the 
finding of need for the 
temporary rule, together 
with the reasons for that 
finding and a copy of the 
notice of hearing on the 
proposed permanent rule . 

(al) The written 

certification of the finding 
of need for the temporary 
rule shall be signed by: 

(1) The member of the Council 
of State in the case of the 
Departments of Justice, 
Insurance, Public Education, 
Labor, Agriculture, 
Treasurer, State Auditor, or 
Secretary of State. 

(2) The chairman of tlie board 
in tlic case of an 
occupational licensing board 
or the Director of the 
Office of Administrative 
Hearings in the case of that 
agency . 

(3) The Governor in the case 
of all otlicr agencies. 

(b) If the Department of Crime 
Control and Pulilic Safety, 
Transportation, Revenue. or 
Correction determines in V'jriting 
that the immediate adoption, 
ar.nendment , or repeal of a rule 
is necessitated by: 

(1) The public health, 
safety, or v;elfare; 

(2) The effective date of 

a recent act of the General 
Assembly or the United 
States Congress; 

(3) A federal regulation; or 

(4) A court order, tlie agency 
may adopt, amend, or repeal the 
rule. The agency must accompany 
its rule filing with the 
Director of the Office of 
Administrative Hearings and the 
Governor with tlie agency's 
vjritten certification of tlio 
finding of need for t}ie 
te^T'porary rule signed by the 
Governor together v/itli the 
reasons for that finding. In 
the case of tlie Department of 



Correction, in addition to the 
reasons set forth in 
subdivisions (1) through (4) of 
this subsection, the Department 
may file a temporary rule when 
necessary for the management and 
control of persons under the 
custody or supervision of the 
Department in extraordinary 
circumstances as certified by 
the Secretary. The Department 
shall file any temporary rule 
within tvjo working days of its 
adoption by the Secretary under 
G.S. 148-11. 

(c) Rules filed under 
subsections (a) and (b) of this 
section shall be effective for a 
period of not longer than 120 
days. An agency adopting a 
temporary rule shall begin 
normal rule-making procedures on 
the permanent rule under this 
Article at the same time the 
temporary rule is adopted. 

150B-14. Adoption by 
reference . --An agency may 
adopt by reference in its rules, 
vjithout publishing the adopted 
matter in full : 

( 1 ) All or any part of a 
code, standard, or 
regulation which has been 
adopted by any other agency 
of this State or by any 
agency of the United States 
or by a generally recognized 
organization or association; 

(2) Any plan or material 
which is adopted to meet the 
requirements of any agency 
of the United States and 
approved by that agency; or 

(3) Any plan, material, 
manual, guide or other 
document establishing job 
application or employment 
practices or procedures of 
any State agency otlier than 
the State Personnel 
Commission. The State 
Personnel Commission, 
however, shall incorporate 
by reference in its rules 
job classification 
standards, including but not 
limited to those relating to 
qualifications and salary 
levels . 

The reference shall fully 
identify the adopted matter by 
date and otherwise. The 
roforence shall not cover any 
later amendments and editions of 
the adopted matter, but if the 
agency wishes to incorporate 
them in its rule it shall amend 
tlie rule or promulgate a new 
rule. The agency shall have 
available copies of the adopted 
matter for inspection and the 
rules shall state wliere copies 
of the adopted matter can be 
obtained and the amount of any 



NORTH CAROLINA REGISTER 



231 



charge for the copy as of the 
time the rule is adopted. 

150B-15. Continuation o f 
rules ■ --When a law authorizing 
or directing an agency to 
promulgate rules is repealed, 
and (i) substantially tlie sar^e 
rule-naking power or duty is 
vested in tlie same or a 
successor agency by a new 
provision of law, or (ii) the 
function of the agency to which 
the rules are related is 
transferi'ed to another agency by 
law or executive order, the 
existing rules of the original 
agency shall continue in effect 
until amended or repealed, and 
the agency or successor agency 
may repeal any rule relating to 
the transferred duty or 
function. When a law creating 
an agency or authorizing or 
directing it to promulgate rules 
is repealed or the agency is 
abolished and (i) substantially 
the same rule-making power or 
duty is not vested in the same 
or a successor agency by a new 
provision of law and (ii) the 
function of the agency to which 
the rules are related is not 
transferred to another agency, 
the existing applicable rules of 
the original agency are 
automatically repealed as of the 
effective date of the law 



repealing 



the 



agency 



rule-making power or abolishing 
the agency. 

150B-ie. Petition for 
adoption of rules. --Any person 
may petition an agency to 
promulgate, amend, or repeal a 
rule, and may accompany his 
petition with such data, views, 
and arguments as he tliinks 
pertinent. Each agency shall 
prescribe by rule the form for 
petitions and the procedure for 
their suJDmission, consideration, 
and disposition. Within 30 days 
after submission of a petition, 
the agency shall either deny the 
petition in writing, stating its 
reasons for the denial, or 
initiate rule-making proceedings 
in accordance with G.S. 150B-12 
and G.S. 1508-13; provided, 
however, commissions and boards 
sliall act on a petition at their 
ne.xt regularly scheduled 
meeting, but in any case no 
later than 120 days after 
submission of a petition. 
Denial of the petition to 
initiate rule malcing under tliis 
section shall be considered a 
final agency decision for 
purjior.os of judicial review. 

1 5 B - 17 . Po r.larato ry 
rulings . --On request of a 
person aggrieved, an agency 
shall issue a declaratory ruling 



as to the validity of a rule or 
as to the applicability to a 
given stabe of facts of a 
statute administered by the 
agency or of a rule or order of 
the agency, except when the 
agency for good cause finds 
icsvianco of a ruling 
unde.-^irable . The agency shall 
prescribe in its rules the 
circumstances in which rulings 
shall or shall not be issued. A 
declaratory ruling is binding on 
the agency and the person 
requesting it unless it is 
altered or set aside by tlie 
court . An agency may not 
retroactively change a 
declaratory ruling, but nothing 
in this section prevents an 
agency from prospectively 
changing a declaratory ruling. 
A declaratory ruling is subject 
to judicial review in the same 
r.innner as an order in a 
contested case. Failure of the 
regency to issue a declaratory 
ruling on the merits wibhin 60 
days of tlie request for such 
ruling sliall constitute a denial 
of the request as well as a 
denial of tlic merits of the 
request and shall be subject to 
judicial revicv;. 

Article 3. 
Administrative Hearings. 

150B-22. Settlement; 
contested case . --It is the 
policy of this State that any 
dispute between an agency and 
another per.':;on that involves t'le 
person's rights, duties, or 
privileges, including licensing 
or the levy of a monetary 
penalty, should be settled 
througli informal procedures. In 
trying to reach a settlement 
through informal procedures, the 
agency may not conduct a 
proceeding at whicli sworn 
testimony is taken and witnesses 
may be cross-examined. 
Notwithstanding any other 
provision of law. if the agency 
and the other person do not 
agree to a I'esolution of the 
dispute througli informal 
procedures, either the agency or 
tlie person may commence an 
administrative proceeding to 
determine the person's rights, 
duties, or privileges, at v.'hich 
time the dispute becomes a 
"contested case". 

1 5 B - 2 3 . Comn cncoment ; 
assig nment of lie aring off icer; 

h earing req uire d; noti ce ; 

inte rve ntion . --(a) All 
contested cases other than those 
conducted untler Article ''i!\ of 
this Chapter shall be commenced 
by the filing of a petition v/ith 
the Office of Administrative 
Hearings. The party v;ho files 



232 



NORTH CAROLINA REGISTER 



the petition shall also serve a 
copy of the petition on all 
other parties and sliall file a 
certificate of service together 
vjith the pcirition. Any petition 
filed by a party other than an 
agency shall be verified or 
supported by af idavit and shall 
state facts tending to cscnblirli 
tliat the agency named as the 
respondent lias deprived tlie 
petitioner of property, has 
ordered the petitioner to pay a 
fine or civil penalty, or has 
oliierwise substantially 

prejudiced the petitioner's 
rights and that the agency: 

(1) exceeded its authority 
or jurisdiction; 

(2) acted erroneously; 
C3) failed to use proper 

procedure ; 

(4) acted arbitrarily or 
capriciously; or 

(5) failed to act as 
required by lav; or rule. 

The parties in a contested case 
shall bo given an opportunity 
for a l-.earing without uiiduo 
delay . 

All contested cases under 
Chapter 126 of the General 
Statutes shall be conducted in 
the Office of Administrative 
Hearings, and no party may waive 
the right to havo the case 
conducted in tlio Office of 
Administrative Hearings. In 
other contested cases, if a 
non-agency party commences the 
case, that pr.rty may v.'aive the 
right to have the case conducted 
in the Office of Administrative 
Hearings in the petition filed 
to comir.cncc tlie case. If an 
agency coir.inenccs the contested 
case, a non-agoncy 
party-respondent may, within 15 
days of service of tlie petition, 
waive the riglit to have the 
contested case conducted in the 
Office of Administrative 
Moarings by notifying the 
Director of the Office of 
A;Liiinis era t ive Hearings in 
vjriting. If there is more than 
one non-agency party-respondent, 
the waiver shall not be 
effective unless joined by all 
of th.cse parties. In the 
absence of a waiver, a contesLcd 
case under this Article shall be 
presided over by the Director of 
tiie Office of Administrative 
Hearings or an Administrative 
Law Judge assigned by him. In 
assigning Administrative Lav; 
Judges, the Director shall 
attempt to use personnel having 
expertise in the subject to be 
dealt viith in the Jiearing. 

A local government employee, 
applicant for cir.ploymont , or 
former employee to v;hom Cliaptcr 



126 of the General Statutes 
applies may commence a contested 
case under this Article in the 
same manner as any other 
petitioner. The case shall be 
conducted in the Office of 
Administrative Hearings in the 
same manner as otiier contested 
cases under this Article, except 
that tlie decision of tlie State 
Personnel Commission shall be 
advisOi-y only and not binding on 
tlie local appointing authority, 
unless (1) the employee, 
applicant, or former employee 
has been subjected to 
discrimination prohibited by 
Article 6 of Chapter 126 of the 
General Statutes or (2) 
applicable federal standards 
require a binding decision. In 
these two cases, the State 
Personnel Commission's decision 
shall bo binding. 

(b) The parties shall be given 
notice not less than 15 days 
before the hearing by the Office 
of Administrative Hearings or 
tlie agency, v;hich notice shall 
i.nclude : 

(1) A statement of the date, 
hour, place, and nature of 
the hearing; 

(2) A reference to the 
particular sections of the 
statutes and rules involved; 
and 

(3) A short and plain 
statement of the factual 
allegations . 

(c) Notice shall be given 
personally or by certified mail. 
If given by certified mail, it 
shall be deemed to have been 
given on the delivery date 
appearing on the return receipt. 
If giving of notice cannot be 
accomplished either personally 
or by certified mail, notice 
shall then be given in the 
m:innor provided in G.S. 1A-1 , 
Rule 4( j1 ) . 

(d) A.ny person may petition to 
become a party by filing a 
notion to intervene in the 
manner provided in G.S. 1A-1 , 
Rule 24. In addition, any 
person interested in a contested 
case may intervene and 
participate in that proceeding 
to the extent deemed appropriate 
by the hearing officer. 

(e) All hearings under this 
Chapter shall bo open to the 
public. Hearings shall be 
conducted in an impartial 
monncr . Hearings shall be 
conducted according to the 
procedures sot out in this 
Article, except to the extent 
and in the particulars that 
specific hearing procedures and 
time standards are governed by 
another statute. 



NORTH CAROLINA REGISTER 



233 



1508-2'). Venue of hearing. 
— (a) The hearing of a 
contested case sliall be 
conducted : 

(1) In the county in this 
State in which any person 
whose property or rights are 
the subject matter of the 
hearing maintains liis 
residence; 

(2) In the county where the 
agency maintains its 
principal office if the 
property or rights that are 
the subject matter of the 
hearing do not affect any 
person or if the subject 
matter of the hearing is the 



property 



or right; 



residents of more tlian one 
county; or 
(3) In any county determined 
by the agency or hearing 
officer in his discretion to 
promote the ends of justice 
or better servo the 
convenience of witnesses . 
Cb) Any person whose property 
or rights are the subject matter 
of the hearing waives his 
objection to venue by proceeding 
in the hearing. 

1 50B-25 . Conduct of h oRring: 
ansv.'or . --(a) If a party fails 
to appear in a contested case 
after proper service of notice, 
and if no adjournment or 
continuance is granted, t!ie 
agency or hearing officer may 
proceed with the hearing in tlic 
absence of the party. 

(b) A party vjho has been 
served with a notice of hearing 
may file a written response, and 
a copy must be mailed to all 
other parties not less than 10 
days before the date set for 
hearing . 

(c) The parties shall be given 
an opportunity to present 
arguments on issues of law and 
policy and an opportunity to 
present evidence on issues of 
fact. 

(d) A party may cross-examine 
any witness, including the 
author of a document prepared 
by, on behalf of, or for use of 
the agency and offered in 
evidence. Any party may submit 
rebuttal evidence . 

150B-26. Consolidation. 
— When contested cases involving 
a common question of law or fact 
or multiple proceedings 
involving the same or relate;! 
parties are pending, the 
Director of the Office of 
Administrative Hearings nay 
order a joint hearing of any 
matters at issue in the cases, 
order the cases consolidated, or 
make other orders to reduce 



costs or delay in the 
proceedings . 

150B-2'7. Subpoena. --After 
the commencement of a contested 
case, the agency or hearing 
officer may issue subpoenas upon 
his own motion or upon a written 
request. V.'hcn a written request 
for a subpoena has been made, 
tlio agency or hearing officer 
shall issue the requested 
subpoenas forthwith requiring 
the attendance and testimony of 
v;itnesscs and the production of 
evidence including books, 
records, correspondence, and 
documents in their possession or 
under their control. Upon 
vjritten request, the agency or 
hearijig officer shall revoke a 
subpoena if, upon a hearing, he 
finds that the evidence the 
production of v;liich is required 
docs not relate to a natter in 
issue, or if the subpoena does 
not describe with sufficient 
particularity the evidence the 
production of which is required, 
or if for any other reason 
sufficient in law the subpoena 
is invalid. Witness fees shall 
be paid by the party requesting 
the subpoena to subpoenaed 
witnesses in accordance with 
G.S. 7A-314. However, State 
officials or employees who arc 
subpoenaed shall not be entitled 
to v;itncss fees, but they shall 
receive their normal salary and 
they shall not be required to 
take any annual leave for t)ie 
v)itness days. Travel expenses 
of State officials or employees 
who are subpoenaed shall be 
reimbursed as provided in G.S. 
138-6. 

1508-28. Depositions and 
d iscove ry . --(a) A deposition 
nay be used in lieu of other 
evidence vjlion taken in 
compliance with the Rules of 
Civil Procedure, G.S. 1A-1 . 
Parties in contested cases may 
engage in discovery pursuant to 
the provisions of the Rules of 
Civil Procedure, G.S. 1A-1. 

Cb) On a request for 
identifiable agency records, 
v/ith respect to material facts 
involved in a contested case, 
except records related solely to 
the internal procedures of the 
agency or v;hich are exempt from 
disclosure by law, an agency 
shall promptly make tlic records 
available to a party. 

1 50E-29 . Rul es of evidence. 
— (a) In ail contested cases, 
irrelevant, immaterial and 
unduly repetitious evidence 
shall be excluded. Except as 
otherwise provided, the rules of 
evidence as applied in the trial 
division of the General Court of 



234 



NORTH CAROLINA REGISTER 



Justice shall be followed; but, 
vjhen evidence is not rensonably 
available under the rules to 
show relevant facts, then the 
most reliable and substantial 
evidence available sliall be 
admitted. It sliall not be 
necessary for a party or his 
attorney to object at the 
licaring to evidence in order to 
preserve the right to object to 
its consideration by the agency 
or hearing officer in reaching 
his decision, or by the coui't on 
judicial rcviev,'. 

(b) Evidence in a contested 
case, including records and 
documents, sliall be offered and 
made a part of the record. 
Factual information or evidence 
not made a part of the record 
shall not be considered in the 
determination of the case, 
eMcapt as permitted under G.S. 
150B-30. Documentary evidence 
may be received in the form of a 
copy or excerpt or may be 
incorporated by reference, if 
the materials so incorporated 
are available for examination by 
the parties. Upon timely 
request, a party shall be given 
an opportunity to compare the 
copy with the original if 
available . 

1 5 OB -3 . O fficial notice . 
--Official notice may be taken 
of all facts of whicli judicial 
notice may be taken and of other 
facts within the specialized 
knowledge of the agency. The 
noticed fact and its source 
sliall be stated and made knov;n 
to affected parties at the 
earliest practicable time, and 
any party shall on timely 
request be afforded nn 
opportunity to dispute the 
noticed fact through submission 
of evidence and argument . 

1503-31 . Stipulat ions . 
— (a) The parties in a 
contested case may, by a 
stipulation in writing filed 
V7ith the agency or hearing 
officer, agree upon any fact 
involved in the controversy, 
which stipulation shall be used 
as evidence at the hearing and 
be binding on the parties 
thereto. Parties should agree 
upon facts v/hc-n practicable. 

(b) Except as otherwise 
provided by law, disposition may 
be made of a contested case by 
stipulation, agreed settlement, 
consent order, waiver, default, 
or other method agreed upon by 
the parties. 

150B-32. Desicrnation of 
hearin g officer. --(a) The 
Director of tlie Office of 
Administrative Hearings shall 
assign himself or a hearing 



officer in the Office of 
Administrative Hearings to 
preside as hearing officer in 
each contested case. If a party 
waives the right to have a case 
conducted in the Office of 
Administrative Hearings in the 
petition to commence the case, 
an agency, one or more members 
of the agency, a person or group 
of persons designated by 
statute, or one or more hearing 
officers designated and 
authorized by tlie agency to 
conduct contested cases . 

(b) On the filing in good 
faith by a party of a timely and 
sufficient affidavit of personal 
bias or disqualification of a 
hearing officer. the Hearing 
Officer shall determine the 
matter as a part of the record 
in the case, and this 
determination shall be subject 
to judicial review at the 
conclusion of the proceeding. 

(c) When a hearing officer is 
is disqualified or it is 
impracticable for him to 
continue tlie hearing, another 
hearing officer shall be 
assigned to continue with the 
case unless it is shov;n that 
substantial prejudice to any 
party will result, in which 
cvenb a new hearing shall be 
held or the case dismissed 
witliout prejudice. 

150B-33. Powers of hearing 
o fficer . --(a) A hearing 
officer shall stay any contested 
case under this Article on 
motion of an agency which is a 
party to the contested case, if 
the agency shoves by supporting 
Jiffidavits that it is engaged in 
other litigation or 
adniinistrative proceedings, by 
whatever name called, with or 
bofore a federal agency, and 
tills other litigation or 
administrative proceedings will 
determine the position, in whole 
or in part, of the agency in the 
contested case. At the 
conclusion of the other 
litigation or administrative 
proceedings, the contested case 
shall proceed and be determined 
as expeditiously as possible, 
(b) A hearing officer may: 

(1) Administer oaths and 
affirmations; 

(2) Sign and issue subpoenas 
in the name of the agency or 
the Office of Administrative 
Hearings, as applicable, 
requiring attendance and 
giving of testimony by 
witnesses and the production 
of books, papers, and other 
documentary evidence; 

(3) Provide for the taking of 
testimony by deposition; 



NORTH CAROLINA REGISTER 



235 



(4) Regulate the course of 
the hearings, including 
discovery, set the time and 
place for continued 
hearings, and fix tlio time 
for filing of briefs and 
other documents; 

(5) Direct the parties to 
appear and confer to 
consider simplification of 
the issues by consent of the 
parties ; 

(6) Stay the contested action 
by tlie agency pending tlic 
outcoir.e of the case, upon 
such terms as he deems 
proper, and subject to the 
provisions of G.S. lA-1, 
Rule 65; 

(7) Determine whether the 
hearing shall be recorded by 
a stenographer or by an 
electronic device; and 

(8) Apply to any judge of the 
Superior Court resident in 
the district or presiding at 
a term of court in the 
county where a hearing is 
pending for an order to sliov; 
cause why any person should 
not be held in contempt, and 
the Court shall have the 
power to impose punishment 
as for contempt for acts 
whicli would constitute 
direct or indirect contempt 
if the acts occurred in an 
action pending in superior 
court . 

(9) Determine that a rule as 
applied in a particular case 
is void because (1) it is 
not within tJie statutory 
authority of the ageiicy, (2) 
is not clear and unambiguous 
to persons it is intended to 
direct, guide, or assist, or 
(3) is not reasonably 
necessary to enable the 
administrative agency to 
perform a function assigned 
to it by statute or to 
enable or facilitate the 
implementation of a program 
or policy in aid of vihich 
the rule was adopted. 

150B-34. Proporal for 
decision; recommended decision. 
— (a) In a contested case 
conducted by a hearing officer 
other than the agency officials 
who will make the final 
decision, the hearing officer 
shall : 

(1) Make a proposal for 
decision that contains his 
findings of fact and 
conclusions of law and 
proposed decision, opinion, 
order, or report; 

(2) Deliver a copy of the 
proposal for decision to 
each party; and 

(3) Give each party an 



opportunity to file 

exceptions and proposed 

findings of fact and to 

present written arguments to 

h im . 

(b) After con.sidcring any 

exceptions, proposed findings of 

fact, and written arguments of 

the parties, the hearing officer 

shall make a recommended 

decision that contains findings 

of fact and conclusions of law 

and a recommended decision, 

opinion, order, or report. He 

sliall include the recommended 

decision in the official record 

prepared pursuant to G.S. 

150B-37(a) and shall forv/ard a 

copy of the official record to 

tlie agency. 

150B-35. No ex part e 

commi i n icat ion; o.xceptions . 

--Unless required for 
disposition of nn ox parte 
matter authorized by lav;, a 
member or employee of an agency 
assigned to make a decision oi" 
to make findings of fact and 
conclusions of lav; in a 
contested case or a hearing 
officer sliall not communicate, 
directly or indirectly, in 
connection witli any issue of 
fact, or question of law, with 
any person or party or his 
representative, except on notice 
and opportunity for all parties 
to participate . 

150B-36. F inal decision . 
--A final doci£;ion or order in a 
contested case shall be made by 
the agency in vjriting after 
rcvievj of the official record as 
defined in G.S. 150B-37(a) and 
shall include findings of fact 
and conclusions of la\;. If the 
agency does not adopt the 
hearing officer's recommended 
decision as ixs final decision 
in a contested case conducted by 
a hearing officer, the agency 
shall include in its decision or 
order the specific reasons why 
the hearing officer's 
recommended decision is not 
adopted. The agency may 
consider only the official 
record prepared pursuant to G.S. 
150B-37 in making a final 
decision or order, and the final 
decision or order shall be 
supported by substantial 
evidence admissible under G.S. 
1503-29!a), 1503-30, or 150B-31. 
A copy of the decision or order 
shall ho served upon eacli party 
personally or by certified mail 
addrcs;:c(l to the party at the 
latest address given by the 
party to the agency, and a copy 
shall be furnished to his 
attorney of record and the 
Office of Administrative 
Hearings . 



236 



NORTH CAROLINA REGISTER 



150B-37. Official record . 
— (a) The agency or hearing 
officer who conducts the hearing 
in a contested case shall 
prepare an official record of 
tlie hearing which shall include: 

(1) Notices, pleadings, 
motions, ■• :id intermediate 
rulings ; 

(2) Questions and offers of 
proof, objections, and 
rulings tliereon; 

(3) Evidence presented; 
iA) Matters officially 

noticed, except matters so 
obvious that a statement of 
them v.'ould serve no useful 
purpose; 

(5) The hearing officer's 
proposal for decision and 
exceptions and proposed 
findings of fact; and 

(6) The hearing officer's 
recommended decision, 
opinion, order, or report. 

(b) Proceedings at which oral 
evidence is presented shall be 
recorded, but need not be 
transcribed unless requested by 
a party. Each party shall bear 
the cost of the transcript or 
part thereof or copy of said 
transcript or part thereof w)iich 
said party requests, and said 
transcript or part tliereof shall 
be added to the official record 
as an e.xhibit . 

Article 3A. 

Other Administrative Hearings. 
150B-38. Scope; 
r equired; notice; venue . - - ( a ) 
The provisions of this Article 
shall apply to the following 
agencies : 

(1) Occupational licensing 
agencies ; 

(2) The State Banlcing 
Commission, the Commissioner 
of Banks, the Savings and 
Loan Division of the 
Department of Commerce, and 
the Credit Union Division of 
the Department of Commerce; 
and 

(3) The Department of 
Insurance and the 
Commissioner of Insurance. 

(b) Prior to any agency action 
in a contested case, tlie agency 
shall give the parties in tlic 
case an opportunity for a 
hearing without undue delay and 
notice not less than 15 days 
before the hearing. Notice to 
the parties shall include: 

(1) A statement of the date, 
hour, place, and nature of 
tlie hearing; 

(2) A reference to the 
particular sections of the 
statutes and rules involved; 
and 

(3) A short and plain 



statement of the facts 
alleged . 

(c) Notice shall be given 
personally or by certified mail. 
If given by certified mail, 
notice shall be deemed to have 
been given on the delivery date 
appearing on the return receipt. 
If notice cannot be given 
personally or by certified mail, 
then notice shall be given in 
the manner provided in G.S. 
1A-1 , Rule 4( j1 ) . 

(d) A party who has been 
served with a notice of hearing 
may file a written response with 
the agency. If a written 
response is filed, a copy of the 
response must be mailed to all 
other parties not less than 10 
days before the date set for the 
hearing . 

(e) All hearings conducted 
under this Article shall be open 
to tlie public. A hearing 
conducted by the agency shall be 
held in the county where the 
agency maintains its principal 
office. A hearing conducted for 
the agency by an Administrative 
Law Judge requested under G.S. 
150B-40 shall be held in a 
county in this State where any 
person whose property or rights 
are the subject matter of the 
hearing resides. If a different 
venue would promote the ends of 
justice or bettor serve the 
convenience of witnesses, the 
agency or the Administrative Law 
Judge may designate another 
county. A person whose property 
or rights are the subject matter 
of the hearing waives his 
objection to venue if he 
proceeds in the hearing. 

(f) Any person may petition to 
become a party by filing with 
the agency or hearing officer a 
motion to intervene in the 
manner provided by G.S. 1A-1, 
Rule 24. In addition, any 
person interested in a contested 
case under this Article may 
intervene and participate to the 
extent deemed appropriate by the 
agency hearing officer. 

(g) When contested cases 
involving a common question of 
law or fact or multiple 
proceedings involving the same 
or related parties are pending 
before an agency, the agency may 
order a joint hearing of any 
matters at issue in the cases, 
order the cases consolidated, or 
make other orders to reduce 
costs or delay in the 
proceedings . 

(h) Every agency shall adopt 
rules governing the conduct of 
hearings that are consistent 
with the provisions of this 
Article. 



iIORTH CAROLINA REGISTER 



237 



150B-39. Doposition?; 
discovery; subpoeiia.3 . - - ( a ) A 
deposition may be used in lieu 
of other evidence vihcn taken in 
cOiTipliance with the Rules of 
Civil Procedure, G.S. lA-1. 
Parties in a contested case may 
engage in discovery pursuant to 
the provisions of the Rules of 
Civil Procedure, G.S. lA-1. 

(b) Upon a request for an 
identifiable agency record 
involving a material fact in a 
contested case, the agency shall 
promptly provide the record to a 
party, unless tlie record relates 
solely to tlie agency's internal 
px'ocedures or is exempt from 
disclosure by law. 

(c) An agency may issue 
subpoenas in preparation for, or 
in the conduct of, a contested 
case upon its own motion. If a 
written request is made by a 
party in a contested case, an 
agency shall issue subpoenas 
fortliwith requiring the 
attendance and testimony of 
witnesses and the production of 
evidence including books, 
records, correspondence, and 
documents in their possession or 
under their control. Upon 
v.'rittcn request, the agency 
shall revoke a subpoena if, upon 
a hearing, the agency finds that 
the evidence, the production of 
which is required, does not 
relate to a matter in issue, or 
if the .-subpoena does not 
describe with sufficient 
particularity the evidence the 
production of which is required, 
or if for any other reason 
sufficient in law tl^e subpoena 
is invalid. Witness fees sliall 
be paid by the party requesting 
the subpoena to subpoenaed 
witnesses in accordance with 
G.S. 7A-314. However, State 
officials or employees ivho arc 
subpoenaed shall not be entitled 
to any witness fees, but they 
shall receive their normal 
salary and they shall not bo 
required to take any annual 
leave for the witness days . 
Travel expenses of State 
officials or employees who arc 
subpoenaed shall be reimbursed 
as provided in G.S. 138-6. 

150B-40. Conduct of hon rincr; 
presiding officer; ex pa rte 
com'Tiunicat ion . --Ca) Hearings 
shall be conducted in a fair and 
impartial manner. At the 
hearing, the agency and the 
parties shall be given an 
opportunity to present evidence 
on issues of fact, examine and 
cross-c.xaminc witnesses, 

including the author of a 
document prepared by, on behalf 
of or for the use of the agency 



and offered into evidence, 
sulimit rebuttal evidence, and 
present arguments on issues of 
lavj or policy. 

If a party fails to appear in a 
contested case after he has been 
given proper notice, the agency 
may continue the hearing or 
proceed vjith the hearing and 
nialce its decision in the absence 
of the party. 

(b) Except as provided under 
subsection Ce) of this section, 
hearings under this Article 
shall be conducted by a majority 
of the agency. An agency shall 
designate one or more of its 
members to preside at the 



hearing . 



If a party files in 



good faith a timely and 
sufficient affidavit of the 
personal bias or other reason 
for disqualification of any 
ncmbcr of the ayciicy, the agency 
shall dcter.-nine the matter as a 
part of tlie record in tlie case, 
and its determination shall be 
subject to judicial review at 
the conclusion of the 
proceeding. If a presiding 
officer is disqualified or it is 
impracticable for him to 
continue the hearing, another 
presiding officer shall be 
assigned to continue v/ith the 
case, except tliat if assignment 
of a new presiding officer will 
cause substantial prejudice to 
any party, a new hearing shall 
be held or tlio case dismissed 
without prejudice, 
(c) Tiio presiding officer may: 

( 1 ) Administer oaths and 
af f irmat ions ; 

(2) Sign and issue subpoenas 
in the name of the agency, 
requiring attendance and 
giving of testimony by 
witnesses and the production 
of books, papers, and other 
documentary evidence; 

(3) Provide for the taking of 
testimony by deposition; 

(4) Regulate tlie course of 
the hearings, set the time 
and place for continued 
hearings, and fix the time 
for filing of briefs and 
other documents; 

(5) Direct the parties to 
appear and confer to 
consider simplification of 
the issues by consent of the 
parties; and 

(6) Apply to any judge of the 
superior court resident in 
tlie district or pi'osiding ::t 
a term of court in the 
county whore a hearing is 
pending for an order to show 
cau.'^o why any person should 
not be held in contempt of 
the agency and its 
processes, and the court 



238 



NORTH CAROLINA REGISTER 



shall have the power to 
impose punishment as for 
contempt for acts which 
Kould constitute direct or 
indirect contempt if tlie 
acts occurred in an action 
pending in superior court . 

(d) Unless i^c juirod for 
di.Gpositon of an ex parte matter 
authorized by law. a member of 
an agency assigned to make a 
decision or to make findings of 
fact and conclusions of law in a 
contested case under this 
Article shall not communicate, 
directly or indirectly, in 
connection with any issue of 
fact or question of lav;, with 
any person or party or his 
representative, except on notice 
and opportunity for all parties 
to participate. This 
prohibition begins at the time 
of the notice of hearing. An 
agency membei' may communicate 
with other members of the agency 
and may have the aid and advice 
of the agency staff other than 
the staff which has been or is 
engaged in investigating or 
prosecuting functions in 
connection with the case under 
consideration or a factually 
related case. This section does 
not apply to an agency employee 
or party representative with 
professional training in 
accounting, actuarial science, 
economics or financial analysis 
insofar as the case involves 
financial practices or 
conditions . 

(e) When a majority of an 
agency is unable or elects not 
to hoar a contested case, the 
agency shall apply to the 
Director of the Office of 
Administrative Hearings for the 
designation of an Administrative 
Law Judge to preside at the 
hearing of a contested case 
under this Article. Upon 
receipt of the application, the 
Director shall, witliout undue 
delay, assign an Administrative 
Lav; Judge to hear the case. 

The provisions of this Article, 
rather than the provisions of 
Article 3, shall govern a 
contested case in which tlie 
agency requests an 
Administrative Law Judge from 
the Office of Administrative 
Hearings . 

The Administrative Law Judge 
assigned to liear a contested 
case under this Article siiall 
sit in place of tlie agency and 
shall have the authority of the 
presiding officer in a contested 
case under this Article. The 
Administrative Lav; Judge shall 
make a proposal for decision, 
which shall contain proposed 



findings of fact and proposed 
conclusions of law. 

An Admiiiistrative Law Judge 
shall stay any contested case 
ujidcr this Article on motion of 
an agency which is a party to 
the contested case, if the 
agency shows by supporting 
affidavits that it is engaged in 
other litigation or 
administrative proceedings, by 
whatever name called, with or 
before a federal agency, and 
this other litigation or 
administrative proceedings will 
determine the position, in whole 
or in part, of the agency in the 
contested case. At the 
conclusion of the other 
litigation or administrative 
proceedings, the contested case 
shall proceed and be determined 
as expeditiously as possible. 

The agency may make its final 
decision only after the 
/Administrative Law Judge's 
proposal for decision is served 
on the parties, and an 
opportunity is given to each 
party to file exceptions and 
proposed findings of fact and to 
present oral and written 
arguments to the agency. 

150B-41. Evid e nce; 
stip ulations; official notice. 
--(a) In all contested cases, 
irrelevant, immaterial, and 
unduly repetitious evidence 
shall be excluded. Except as 
otherwise provided, the rules of 
evidence as applied in the trial 
division of the General Court of 
Ju.'stice sliall be followed; but, 
v;hen evidence is not reasonably 
available under such rules to 
show relevant facts, they may be 
shown by the most reliable and 
substantial evidence available. 
It sliall not be necessary for a 
party or his attorney to object 
to evidence at the hearing in 
order to preserve the right to 
object to its consideration by 
tlie agency in reaching its 
decision, or by the court of 
judicial review. 

(b) Evidence in a contested 
case, including records and 
documents sJiall be offered and 
made a part of the record. 
Other factual information or 
evidence shall not be considered 
in determination of the case, 
except as permitted under G.S. 
lSOB-30. Documentary evidence 
may be received in the form of a 
copy or excerpt or may be 
incorporated by reference, if 
the materials so incorporated 
are available for examination by 
the parties. Upon timely 
request, a party shall be given 
an opportunity to compare the 



NORTH CAROLINA REGISTER 



239 



copy with the original if 
available . 

(c) The parties in a contested 
case under this Article by a 
stipulation in vjriting filed 
Vfith the r.gcncy may agree upon 
any fact involved in the 
controversy, which stipulation 
shall be used as evidence at the 
hearing and be binding on the 
parties thereto. Parties should 
agree upon facts wlicn 
practicable. E.xccpt as 
otherwise provided by lav;, 
disposition nay be made of a 
contested case by stipulation, 
agreed settlement, consent 
order, waiver, default, or othez' 
method agreed upon by the 
parties . 

(d) Official notice may be 
taken of all facts of vjhich 
judicial notice may be taken and 
of otlier facts v;ithin the 
specialized knovjledge of tlie 
agency. The noticed fact and 
its source shall be stated and 
made knovni to affected parties 
at tlio earliest practicable 
time, and any partj' shall on 
timely request be afforded an 
opportunity to dispute the 
noticed fact through submission 
of evidence and argument. An 
agency may use its experience, 
technical competence, and 
specialized knowledge in the 
evaluation of evidence presented 
to it. 

150B-42. Final aaoncv 

decision ; official record . 

— (a) After compliance with the 
provisions of G.S. 150B-40(e), 
if applicable, and review of the 
official record, as defined in 
subsection (b) of this section, 
an agency shall make a written 
final decision or order in a 
contested case. The decision or 
order shall include findings of 
fact and conclusions of law. 
Findings of fact sliall be based 
exclusively on the evidence and 
on matters officially noticed. 
Findings of fact, if set forth 
in statutory language, sliall be 
accompanied by a concise and 
explicit statement of tlic 
underlying facts supporting 
them. A decision or order shall 
not be made except upon 
consideration of the record as a 
whole or such ijortion thereof as 
may be cited by any party to the 
proceeding and shall be 
supported by substantial 
evidence admissible under G.S. 
150B-41. A copy of the decision 
or order shall bo served upon 
each party personally or by 
certified mail addressed to the 
party at the latest address 
given by the party to the agency 



and a copy shall be furnished to 
his attorney of record. 

Cb) An agency shall prepare an 
official record of a hearing 
that shall include : 

(1) Notices, pleadings, 
motio;is, and intermediate 
rulings ; 

(2) Questions and offers of 
proof, objections, and 
rulings thereon; 

(3) Evidence presented; 

(4) Matters officially 
noticed, e.xccpt matters so 
obvious that a statement of 
tlicm v;ould serve no useful 
purpose ; 

(5) Proposed findings and 
exceptions; and 

(6) Any decision, opinion, 
order, or report by the 
officer presiding at the 
hearing and by the agency. 

(c) Proceed iiigs at vjliicli oral 
evidence is presented sliall be 
recorded, but need not be 
transcribed unless requested by 
a party. Each party shall bear 
the cost of the transcript or 
part thereof or copy of said 
transcript or part thereof which 
said party requests. 
Article 4 . 
Judicial Review. 
150B-43. Ri ght to judici al 
revicvj . --Any person viho is 
aggrieved by the final decision 
in a contested case, and v/ho has 
exhausted all administrative 
remedies made available to him 
by statute or agency rule, is 
entitled to judicial review of 
the decision under this Article, 
unless adequate procedure for 
judicial review is provided by 
another statute. in v;liich case 
the review shall be under such 
other statute. Nothing in this 
Chapter shall prevent any person 
from invoicing any judicial 
remedy available to him under 
the law to test the validity of 
any administrative action not 
made rcviev;able under this 
Ar Licle . 

1 50B-44 . R ight to judicial 
intervention v.'hen decision 



uiij oasona l ^ly 



dolayo d . 



-Unreasonable delay on the part 
of any agency or hearing officer 
in taking any required action 
shall be justification for any 
person vjhosG rights, duties, or 
privileges are adversely 
affected by such delay to seek a 
court order compelling action by 
the agency or hearing officer. 
An agency's failure to make a 
final r'ccision within GO days of 
receiving the offical recoid 
from the licaring officer 
constitutes an unreasonable 
delay; provided tliat jjoards and 
commissions shall make a fin.il 



240 



NORTH CAROLINA REGISTER 



decision at their next regularly 
scheduled mootingf but in any 
case no later than 120 days 
after the official record is 
received . 

150B-45. M anner of nock ing 

roviev.' : time for filing 

petition; waive . --In order to 
obtain judicial revie;; of a 
final decision under this 
Chapter, the party seeJcing 
review must file a petition in 
the Superior Court of Wake 
County or in the superior court 
of the county where the 
petitioner resides. The 
petition may be filed at any 
time after final decision but 
must be filed not later than 30 
days after a written copy of the 
decision is served upon the 
party seeking the review by 
personal service or by certified 
mail. Failure to file a 
petition within the time stated 
shall operate as a waiver of the 
ririht of such party to revicv; 
under this Chapter, except that, 
for good cause shown, a judge of 
the superior court resident in 
the district or holding court in 
the county vjhere venue is proper 
may issue an order permitting a 
review of the agency decision 
under this Chapter 
notvjithstanding such waiver. 

150B-46. Contents of 
petition; copies served on al l 
parties; int e rvention. --The 



petition sliall explicitly state 
what exceptions are taken to the 
decision or procedure and vjhat 
relief the petitioner seeks. 
Within 10 days after tiie 
petition is filed with tiae 
court, the party seeking tlic 
rcviov; shall serve copies of the 
petition by personal service or 
by certified mail upon all who 
v.'ere parties of record to the 
administrative proceedings. 
Names and addresses of such 
parties shall be furnished to 
tlie petitioner by the agency 
upon request . Any party to the 
administrative proceeding may 
become a party to the reviev; 
proceedings by notifying the 
court v;ithin 10 days after 
receipt of the copy of the 
petition . 

Any person aggrieved may 
petition to become a party by 
filing a motion to intervene as 
provided in G.S. 1A-1, Rule 24. 

150B-47. R ecords filed 
v>ith clerk of superior court; 
conte nts of records; costs. 
--VJithin 30 days after receipt 
of the copy of the petition for 
review, or vjitliin such 
additional time as the court may 
allov;, t]ie Office of 
Administrative Hearings, or if 



that office did not conduct the 
contested case, the agency shall 
transmit to the reviewing court 
the original or a certified copy 
of the official record of the 
hearing in the contested case 
under review. With tlie 
permission of the court, the 
record may be shortened by 
stipulation of all parties to 
the review proceedings. Any 
party unreasonably refusing to 
stipulate to limit the record 
may be taxed by the court for 
such additional costs as may be 
occasioned by the refusal. The 
court may require or permit 
subsequent corrections or 
additions to the record when 
deemed desirable. 

150B-48. Stay of decision. 
--At any time before or during 
the review proceeding, the 
person aggrieved may apply to 
the reviev;ing court for an order 
staying the operation of the 
administrative decision pending 
the outcome of the review. The 
court may grant or deny the stay 
in its discretion upon such 
terms as it deems proper and 
subject to the provisions of 
G.S. 1A-1, Rule 65. 

150B-49. New evidence. 
— In a review proceeding under 
this Article, any party may 
present evidence not contained 
in the record that is not 
repetitive . 

150B-50. Review by court 
v.' ithout jury. --The review of 
agency decisions under this 
Chapter shall be conducted by 
the court without a jury. 

150B-51. Scope of review; 
pov;er of court in disposing of 
case . --Based on the record and 
the evidence presented to the 
court, the court may affirm, 
reverse, or modify t!ie decision 
or remand the case to the agency 
for further proceedings. 

150B-52. Appeal to appellate 
division; obtaining stay of 
court's decision. --Any party 
to the review proceedings, 
including the agency, may appeal 
to the appellate division from 
the final judgment of the 
superior court under rules of 
procedure applicable in other 
civil cases. The appealing 
party may apply to the superior 
court for a stay of its final 
determination, or a stay of the 
adninistrative decision, 

whichever shall be appropriate, 
pending the outcome of the 
appeal to the appellate 
division . 

Article 5. 

Publication of Administrative 

Rules. 

150B-58. Short title. 



NORTH CAROLINA REGISTER 



241 



--This Article may be cited as 
'The Registration of State 
Administrative Rules Act'. 

150B-59. FilincT of rules and 
executive orders. --(a) Rules 
adopted by an agency and 
executive orders of the Governor 
shall be filed v;ith the Director 
of the Office of Administrative 
Hearings. No rule, except 
temporary rules adopted under 
the provisions of G.S. 150B-13 
or rules approved under G.S. 
143B-30.2(e) or (f), shall 
become effective earlier than 
the first day of the second 
calendar month after that 
filing . 

(b) The acceptance for filing 
of a rule by the Director, by 
his notation on its face, shall 
constitute .us onprima facie 
evidence of compliance with this 
Article . 

(c) Rules adopted by an agency 
subject to the provisions of 
Article 2 of this Chapter in 
effect on January 1, 1986, that 
conflict with or violate the 
provisions of G.S. 150B-9(c) are 
repealed. Rules adopted by an 
agency subject to the provisions 
of Article 2 of this Cliaptor in 
effect on September 1, 1986, 
that do not conflict with or 
violate the provisions of G.S. 
150B-9(c) shall remain in effect 
until June 30, 1988. Those 
rules are repealed effective 
July 1, 1988, unless the 
Ad.Tiinistrative Rules Review 
Commission determines that a 
rule complies with G.S. 
I-^SB-SO .2(a) . Review of these 
rules shall be carried out in 
the manner prescribed in G.S. 
143B-30.2 except tliat a rule 
determined to be in compliance 
shall renain in effect . Rules 
adopted on or after January 1 , 
1986, shall become effective as 
provided in this Chapter. 

150B-60. Form of rules; 
responsibilities of agencies; 
assistance to nqencios. - - ( a ) 
In order to be acceptable for 
filing, the rule must: 

CI) Cite the statute or other 
authority pursuant to vjhich 
the rule is adopted; 

(2) Bear a certification by 
the agency of its adoption; 

(3) Cite any prior rule or 
rules of the agency or its 
predecessor in authority 
which it rescinds, amends, 
supersedes, or supplements; 

(4) Bo in tlio physical form 
specified by the Director of 
the Office of Administrative 
Hearings; and 

(5) Bear a notation from the 
Administrative Rules Review 
Commission that it has 



reviewed an approved the 
rule in accordance with G.S, 
143B-30.2. 

(b) Each agency shall 
designate one or more 
administrative procedure 
coordinators whose duties shall 
be to oversee all departmental 
functions required by this 
Cliapter. The coordinator's 
duties shall include providing 
notice of public hearings; 
serving as liaison betvjeen the 
agency and the Office of 
Administrative Hearings, the 
Administrative Rules Review 
Commission and the public; and 
coordinating access to agency 
rules . 

(c) The Director of the Office 
of Administrative Hearings 
shall: 

(1) Maintain an agency 
rule-drafting section in the 
Office of Administrative 
Hearings to draft or aid in 
the drafting of rules or 
amendments to rules for any 
agency; and 

(2) Prepare and publish an 
agency rule-drafting guide 
which sets out the form and 
metliod for drafting rules 
and amendments to rules, and 
to vjhich all rules shall 
comply . 

150B-61. Authority to 
revise form. --(a) The 
Director of the Office of 
Administrative Hearings shall 
liave the authority, following 
acceptance of a rule for filing, 
to revise the form of the rule 
as follows: 

( 1 ) To rearraiige the order 
of rules, Cliapters, 
Subchapters, Articles, 
sections, paragraphs, and 
other divisions or 
subdivisions ; 

(2) To provide or revise 
titles or catch lines; 

(3) To relcttcr or renumber 
the rules and various 
subdivisions in accordance 
vjith a uniform system; 

(4) To rearrange definitions 
and lists; and 

(5) To make other changes in 
arrangement or in form that 
do not alter the substance 
of tlie rule and that are 
necessary or desirable for 
an accurate, clear, and 
orderly arrangement of the 
rules . 

Revision of form by the 
Director sliall not alter the 
effective date of a rule, nor 
shall revision require tlie 
agency to readopt or to refile 
the rule. No later than the 
close of the fifth working day 
after the filing of a rule by an 



242 



NORTH CAROLINA REGISTER 



agency. the Director shall 
return to the agency that filed 
tlie rule a copy of the rule in 
any revised form made by the 
Director, together with his 
certification of the date of tlic 
rule's filing. 

The rule so rcv_sed as to form 
sliall bo substituted for and 
shall bear the date of the rule 
originally filed, and shall bo 
the official rule of the agency. 

(b) In determining the 
drafting form of rules the 
Director shall: 

(1) Minimize duplication of 
statutory language; 

(2) Not permit incorporations 
into the rules by reference 
to publications or other 
documents which arc not 
conveniently available to 
the public; and 

(3) To the extent 
practicable, use plain 
language in rules and avoid 
technical language. 

150B-62. Public in«;oection 
and notification of ctirront and 



roplr i ccd 



rules . 



--(a) 
Immediately upon notation of a 
filing as specified in G.S. 
150B-59(b), the Director of the 
Office of Administrative 
Hearings shall make the rule 
available for public inspection 
during regular office hours. 
Superseded, amended, revised, 
and rescinded rules filed in 
accordance vjith the provisions 
of this Article shall remain 
available for public inspection. 
Tlie current and the prior rules 
so filed shall be separately 
arranged in compliance with the 
provisions of G.S. 150B-61(a). 

(b) The Director shall make 
copies of current and prior 
rules, filed in accordance v;itli 
the provisions of this Article, 
available to the public at a 
cost to be determined by him. 

(c) V;ithin 50 days of the 
acceptance by the Director of a 
rule for filing, the agency 
filing the rule: 

(1) Shall publish the rule as 
prescribed in any applicable 
statute; and 

(2) May distribute the rule 
in a manner selected by the 
agency as best calculated to 
give notice to persons 
likely to be affected by the 
rule . 

The rule so publislied or 
distributed sliall contain the 
legend: 'The form of this rule 
may be revised by the Director 
pursuant to the provisions of 
G.S. 150B-61.' 

150B-63. Pu blication of 
o xecutivo orders and rules; the 
Nortli Carolina Regiritcr. --(a) 



The chief hearing officer of the 
Office of Administrative 
Hearings shall compile, index 
and publish executive orders of 
tlie Governor and all rules filed 
and effective pursuant to the 
provisions of this Article. 

Cb) As nearly a.s practicable 
tlie compilation shall, in 
classification, arrangement, 
numbering, and indexing, conform 
to the organization of the 
General Statutes. 

(c) If the Director determines 
that publication of any rule 
would be impracticable, he shall 
substitute a summary with 
specific reference to the 
official rule on file in his 
office . 

(d) As soon as practicable 
after July 1, 1985, the Director 
shall publish, in print or other 
form, a compilation of all rules 
in force pursuant to the 
provisions of this Article. 
Cumulative supplements shall be 
published annually or more 
frequently in the discretion of 
the Director. Rocompilat ions 
shall be made in the Director's 
discretion . 

(dl) The Director shall also 
publish at periodic intervals, 
but not less often than once 
each month, the North Carolina 
Register v;hich shall contain 
information relating to agency, 
executive, legislative or 
judicial actions that are 
performed under the authority 
of, or are required by, or are 
issued to interpret, or that 
otherwise affect, tliis Chapter. 

( d2 ) In publishing proposed 
amendments to rules, the 
Director shall show the portion 
of the rule being amended as it 
is to the degree necessary to 
provide adequate notice of the 
nature of the proposed 
amendment, with changes shown by 
striking through portions to be 
deleted and underlining portions 
to be added. 

(o) Notwithstanding G.S. 
147-50, reference copies of the 
compilation, supplements, and 
recompilations of the rules, and 
the North Carolina Register 
-•ihall be distributed by the 
Director as soon after 
publication as practicable, 
without charge, only to the 
following officials and 
departments : 

( 1 ) One copy to each county 
of the State, which copy may 
be maintained for public 
inspection in the county in 
a place determined by the 
county commissioners; one 
copy each to the clerk of 
the Supreme Court of North 



NORTH CAROLINA REGISTER 



243 



Carolina and the clerk of 
the North Carolina Court of 
Appeals; one copy e£ich to 
the libraries of the Supreme 
Court of North Carolina and 
the North Carolina Court of 
Appeals; one copy to the 
office of the Governor; and 
five copies to the 
Legislative Services 

Commission for the use of 
the General Assembly; 

(2) One copy to each State 
official and department to 
which copies of the 
appellate division reports 
are furnished under G.S. 
7A-343 . 1 ; 

(3) Five copies to the 
Division of State Library of 
the Department of Cultural 
Resources, pursuant to G.S. 
147-50.1; and 

(4) One copy of the North 
Carolina Register to each 
member of the General 
Assembly . 

(f) The Director shall make 
available copies of the 
compilation. supplements and 
recomputat ions of the rules and 
the North Carolina Register to 
other persons at a price 
determined by him to cover 
publicatioii and mailiiig costs. 
All monies received by tlie 
Office of Administrative 
Hearings pursuant to this 
section fro.-i the sale of copies 
of said publications shall bo 
deposited in the State treasury 
in a special funds account to be 
held in trust for the Office of 
Administrative Hearings to 
defray the e.xpense of future 
recompilat ion, publication, and 
distribution of such documents. 
All monies involved shall be 
subject to audit by the State 
Auditor . 

(g) Notwithstanding any other 
provision of law, the Employment 
Security Commission shall, 
within 15 days of adoption, file 
all rules adopted by it V'/ith the 
Director for public inspection 
and publication purposes only. 
The Director shall compile, make 
available for inspection, and 
publisli the rules filed under 
this subsection in the same 
manner as is provided for other 
rules . 

150B-64. J udicial and 
of ficial not i ce. --Judicial or 
official notice shall be taken 
of any rule effective under this 
Article . 



CHAPTER 7A, SUBCHAPTER XII 

ADMINISTRATIVE HEARINGS 

Office of Administrative 

Hearings . 



and 
the 
It 
and 
and 
all 



the 



7A-750. Creation; status; 
p urpose . — There is created an 
Office of Administrative 
Hearings. The Office of 
Administrative Hearings is an 
independent, quasi- judicial 
agency under Article III, 
Section 11 of the Constitution 
and, in accordance with Article 
IV, Section 3 of the 
Constitution, lias sucli judicial 
pov;ers as mcy be reasonably 
necessary as an incident to the 
accomplisliment of the purposes 
for whicli it is created. The 
Office of Administrative 
Hearings is established to 
provide a source of independent 
iiearing officers to preside in 
administrative cases and thereby 
prevent tlic conimingling of 
legislative, executive, 
judicial functions in 
administrative process, 
shall also maintain dockets 
records of contested cases 
shall codify and publish 
administrative rules. 

7A-751 . Director; pov;ers 
a nd duties . --The head of 
Office of Administrative 
Hearings is the Director. He 
r.Iiall serve as the Director of 
tlie Office of Administrative 
Hearings and shall have the 
pov;ers and duties conferred on 
him by this Chapter and the 
Constitution and laws of this 
State . 

Tlie Office of Administrative 
Hearings is designated the 
official deferral agency under 
Section 706 of the Civil Rights 
Act of 1964, as amended, for all 
charges filed on a timely basis 
with the Equal Employment 
Opportunity Commission by any 
State or local government 
employee covered under Chapter 
126 of the General Statutes. 
The Office of Administrative 
Hearings may contract v;ith the 
Equal Employment Opportunity 
Commission to become a 706 
deferral agency and may conduct 
necessary investigations and 
informal hearings or 
fact-finding proceedings. The 
Office of Administrative 
Hearings may prepare 
investigation reports with tlie 
findings, conclusions, and 
determinations of probable cause 
that a 706 deferral agency is 
required to make and may talce 
otlier actions required for it to 
function as a 706 deferral 
agency for State and local 
employees covered under Chapter 
126 of the General Statutes. 
Proceedings conducted by the 
Office of Administrative 



244 



NORTH CAROLINA REGISTER 



Ilraj'ino^ ^" <"> '/0& deferral 
ciacncy arc not contested cascG 
as defined in G.S. 150B-2(2). 

1A-1S2 . Director; 
appoint ment r; : va cnncy. --Tlio 
Director of the Office of 
Administrative Hearings shall be 
appointed by t.^c Chief Justice 
for a term of office of four 
years. The first Director sliall 
be appointed as soon as 
practicable for a term to begin 
on the day of his appointment 
and to end on Juno 30, 1989. 
Successors to the first Director 
shall be appointed for a term to 
begin on July 1 of the year the 
preceding tcrr. ends and to end 
on June 30 four years later. A 
Director may continue to serve 
beyond his term until his 
successor is duly appointed and 
sv.'orn, but any holdover shall 
not affect the expiration date 
of the succeeding term. 

If the Director is absent 
or unable to serve temporarily 
for any reason, the Senior 
Administrative Law Judge present 
may perform the duties of 
Director . Seniority among 
Administrative Lav/ Judges shall 
bo determined by length of 
service as Administrative Law 
Judge, date of admission to 
practice law in the General 
Court of Justice, and age, in 
that order. 

7A-753. Additional 
Administrative Lav; Ju dg es; 



appointment ; 



s pecialization. 



-The Director shall appoint 
additional Administrative Law 
Judges to serve in tlic Office of 
Administrative Hearings in such 
numbers as the General Assembly 
provides . 

The Director may designate 
certain Administrative Law 
Judges as having the experience 
and expertise to preside at 
specific types of contested 
cases and assign only these 
Administrative Law 
preside at those 



designated 
Judges to 
cases . 

7A-754. 



Qunlif i cntions ; 



standards of conduct ; removal . 
--Only persons duly autliorized 
to practice law in the General 
Court of Justice shall be 
eligible for appointment as the 
Director and Chief 
Administrative Law Judge or as 
an Administrative Law Judge in 
the Office of Administrative 
Hearings. Neither the Chief 
Administrative Law Judge nor any 
Administrative Law Judge may 
engage in the private practice 
of law as defined in G.S. C4-2.1 
while in office; violation of 
tliis provision shall be grounds 
for removal . Each 



Administrative Law Judge shall 
take the oaths required by 
Cliaptcr 1 1 of the General 
Statutes. An Administrative Law 
Judge may be removed from office 
by tlie Director of the Office of 
Administrative Hearings for just 
cause, as that term is used in 
G.S. 126-35. 

7A-755. E xpenses reimbursed. 
--The Director of the Office of 
Administrative Hearings and all 
Administrative Law Judges shall 
bo reimbursed for travel and 
subsistence expenses at the 
rates allowed to State officers 
and employees by G.S. 138-5(a). 

7A-756. Power to administer 
o atlis and issue subpoenas ■ 
--The Chief Administrative Law 
Judge and all Administrative Law 
Judges in the Office of 
Administrative Hearings may, in 
connection with any pending or 
potential contested case under 
Chapter 150B: 

(1) Administer oaths and 
affirmations ; 

(2) Sign and issue subpoenas 
in the name of the Office of 
Administrative Hearings 
requiring attendance and 
giving of testimony by 
witnesses and tlie production 
of books, papers, and other 
documentary evidence; and 

(3) Apply to the General 
Court of Justice, Superior 
Court Division, for any 
order necessary to enforce 
the powers conferred in this 
Article . 

7A-757. Temporary hearing 
officers; appointments: pov'^ers 
and standards; fees. --When 
regularly appointed hearing 
officers are unavailable, the 
Director of the Office of 
Administrative Hearings may 
contract with qualified 
individuals to serve as hearing 
officers for specific 
assignments. A temporary 
hearing officer shall have the 
same powers and adhere to the 
same standards as a regular 
hearing officer in the conduct 
of a hearing. A temporary 
hearing officer shall not be 
considered a state employee by 
virtue of this assignment, and 
shall be remunerated for his 
service at a rate not to exceed 
three hundred dollars ($300.00) 
per day and shall be reimbursed 
for travel and subsistence 
expenses at the rate allowed to 
State officers and employees by 
G.S. 138-6(a). The Director may 
also designate a full-time state 
employee to serve as a temporary 
hearing officer with the consent 
of the employee and his 
supervisor; however, the 



NORTH CAROLINA REGISTER 



245 



emnlcyec is not entitled to any by statute to utilize a hearing 

additional pay for this service. officer from the Office of 

7A-758. A-"'ailablI ity of Administrative Hearings 

heari ng officer to exempt including, but not limited to, 

agencies . --The Director of the State agencies exempt from the 

Office of Administrative provisions of Chapter 150B, 

Hearings may, upon request of municipal corporations or other 

the head of the agency, provide subdivisions of tlie State, and 

a hearing officer to preside at agencies of such subdivisions, 
hearings of public bodies not 



246 NORTH CAROLINA REGISTER 



EXECUTIVE ORDERS 

EXECUTIVE ORDER NUUBER 26 

EMERGENCY DROUGHT RELIEF 



The drouglit co' ditions which 
have prevailed recently 
throughout North Carolina have 
caused extensive damayc to the 
State's agx'icultural resources. 
I have determined tliat tlie 
damage has caused a state of 
emergency to exist and that it 
is so extensive that it exceeds 
the ability of local authorities 
to deal witli it. In response to 
this damage, and the threat of 
greatei" harm as a result of the 
loss of crops, and with the 
gracious assistance of several 
other states in the Union, I 
have developed "Operation Hay" 
to provide assistance to the 
farmers and livestock in our 
state. Therefore, by the 
authority vested in me as 
Governor by the Constitution and 
lav;3 of North Carolina it is 
ORDERED : 

SECTION 1 : COORDINATING 
AGENCIES 

The Department of Commerce and 
the Department of Agriculture 
are designated as the 
Coordinating Agencies for 
"Operation Hay" and ai'e jointly 
chai'ged with tlae duty to 
implement every phase of the 
program, and shall vjork under 
tlie aegis of tiie State Emergency 
Response Team (S.E.R.T.), who 
shall provide staff, facilities 
and other support as may be 
required by the Coordinating 
Agencies. The Departments of 
Com.Tcrce and Agriculture sliall 
coordinate the efforts of all 
cooperating agencies in the 
receipt and distribution of hay 
and livestock feed products from 
other states. Those departments 
shall take care that this food 
and assistance is fairly 
distributed to the state's 
cattle and dairy farms. 



SECTION 2: COOPERATING AGENCIES 

The Departments of Crime 
Control and Public Safety, 
Tx'ancportation , Correction, 
Natural Resources and Community 
Development, and the Governor's 
Communication Office arc hereby 
instructed to provide 
a.'isistance , as directed, to the 
Coordinating Agencies. 

The National Guard and the Air 
National Guard are also directed 
to provide such services and 
assistance as the Coordinating 
Agencies shall require and as I 
shall approve. 

The North Carolina Extension 
Service, the Farm Bureau, The 
Grange, and the A.S.C.S. and the 
FmHA are requested to give full 
cooperation to the Coordinating 
Agencies in providing farm 
information, locating proper 
recipients, and such other 
services that may be helpful to 
the state's farmers. 

SECTION 3: OUT-OF-STATE 
VEHICLES USED IN TRANSPORT 

Vehicles which are transporting 
emergency supplies, hay, grain, 
farm supplies and other items to 
aid in the relief of this 
emergency and which are 
displaying valid license plates 
shall be permitted to carry the 
maximum weights as provided in 
^; ■ C . G ■ S . 20-118, not 

withstanding the local limit 
prescribed by the license 
procured for the vehicle. 

Tlie vehicles described in this 
section are exempt from the 
vehicle registration and tax 
requirements in Article 36B, 
subchapter 5 of the North 
Carolina Revenue Laws. 

The Commissioner of the 
Division of Motor Vehicles of 
the Department of Transpoi-tation 
is directed to administer this 
section of this Order. 

This Order is effective 
imnicdiatcly and shall remain in 
effect until rescinded. 

This the 23rd day of July, 
1986. 



NORTH CAROLINA REGISTER 



247 



AnMINISTRATIVE ORDER 

STATE OF NORTH CAROLINA In the Office of 

V;AKE COUNTY Admini-strative Hearings 

ORDFR 

Under the provisions of G.S. 7A-753, as amended by Sections 4 and 
5 of Chapter 1022, Session Laws of 1985 (Regular Session, 1986) the 
follovjing Hearing Officers of the Office of Administrative Hearings 
are reappointed and redesignated Administrative Lav? Judges: 

Boochor Reynolds Gray 

Fred Gilbert Morrison, Jr. 

Angola Rebecca Bryant 

Thomas Roswoll V.'ost 

Abraham Pcnn Jones 

This the 15th day of July, 1985. 

s/Robert A. Melctt 
Director 



243 NORTH CAROLINA REGISTER 



VOTING RIGHTS ACT FINAL nECISION LETTER 

[G.S. 120-30. 9H, effective July 16, 1986, requires that all letters 
and otlicr documents issued by tlie Attorney General of the United 
States in which a final decision is made concerning a "change 
affecting voting" under Section 5 of the Voting Rights Act of 1965 be 
published in the North Carolina R egister . ] 



July 22, 1986 



Michael Crowell, Esq. 
Tharrington, Smith & Hargrove 
P. 0. Box 1151 
Raleigh, North Carolina 27602 

Dear Mr. Crowell: 

This refers to Chapter 778, H.B. No. 772 (1967), which provides 
for an increase in the size of the county commission from five to six 
members, the addition of an at-largo position to the Greenville 
residency district, the staggering of the terms of the Greenville 
residency district, and the allocation to the commission of the povjer 
to fill the nevj seat by appointment until the 1968 election in Pitt 
County, North Carolina, submitted to the Attorney General pursuant to 
Section 5 of tlie Voting Rights Act of 1965, as amended, 42 U.S.C. 
1973c. We received your submission on May 23, 1985. 

The Attorney General does not interpose any objections to the 
changes in question. Hoi;3ver, we feel a responsibility to point out 
that Section 5 of the Voting Rights Act e.xpressly provides that the 
failure of the Attorney General to object does not bar any subsequent 
judicial action to enjoin the enforcement of such changes. See the 
Procedures for the Administration of Section 5 (28 C.F.R. 51.48). 

Because our review has disclosed that a number of the factors 
leading to a possible violation of Section 2 of the Voting Rights Act 
may be involved v;ith respect to the underlying at-large method of 
election, the Voting Section is considering the appropriateness of 
litigation to determine the Section 2 issues. We will be in further 
contact with you in the near future concerning this matter. In the 
meantime, if you have any questions regarding the concerns raised in 
this letter, feel free to call Poli A. Marmolejos (202-724-3111), 
.'Vttorncy/Reviev.'cr in our Section 5 Unit. 

Sincerely, 

V,'m . Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division 

By: 

Gerald W. Jones 
Chief, Voting Section 



NORTH CAROLINA REGISTER 249 



STATEMENT OF ORGANIZATION 



NORTH CAROLINA 
DEPARTMENT OF AGRICULTURE 

The North Carolina Department 
of Agriculture is a statutorily 
created agency G.S. 106-2, 
within the executive branch of 
the state government. Tlio 
Commissioner of Agriculture, a 
statewide elected official as 
provided for in Article III, 
Section 7(1) of the North 
Carolina Constitution, is the 
head of the Department of 
Agriculture. The Department of 
Agriculture is organized into 
thirteen divisions. A number 
of boards and commissions are 
administratively located in tlie 
department . 

A. Departmental Divisions: 

1 ) Agronomic Services 

The Agronomic Services Division 
performs laboratory analysis of 
soil and plant samples for 
farmers and homeowners. Tests 
determine the fertility of soil 
and the nutrient quantity and 
balance of plants through tissue 
analysis. Nematodes are 
quantified from soil and plant 
root samples and diseases are 
diagnosed. Fertilizer 

application and nematode 
management recommendations are 
made based on test results. 
Growers are assisted in the 
field with problem diagnosis and 
optimum crop production 
strategies by Regional 
Agronomists . 

Mailing Address: 

Agronomic Services Division 

N. C. Department of Agriculture 

Blue Ridge Road Center 

Raleigh, NC 27611 

Telephone: (919) 733-2557 

2) Crop & Livestock 
Reporting Service 

The Crop and Livestock 
Reporting Service Division is 
responsible for collecting, 
preparing, and disseminating 
regular series of official crop, 
livestock and price estimates 
along with other statistics 
relative to agriculture in North 
Carolina and the nation. 

Mailing Address: 

Crop & LivestocJc Reporting 

Service Division 

N. C. Department of Agriculture 

P. 0. Box 276^7 



Raleigh, NC 27611 
Telephone: (919) 733-7293 

3) Food Distribution 

The Food Distribution Division 
operates in cooperation vjith the 
USDA to provide food at no cost 
for distribution to schools of 
high scliool grade or under, 
charitable institutions and 
needy persons. It is the 
responsibility of this division 
to requisition. store, and 
deliver tlie food. 

Hailing Address: 

Food Distribution Division 

N. C. Dcpartmer.t of Agriculture 

P. 0. Box 27647 

Raleigh, N. C. 27611 

Telephone: (919) 733-7661 

4) Food and Drug Protection 

The Food and Drug Protection 
Division assures consumers that 
foods, feeds, drugs, cosmetics, 
pesticides, and automotive 
antifroczers are safe, wholesome 
and properly labeled. Statevfide 
inspections and chemical 
analyses offer protection 
against unsafe, deceptive and 
fraudulent products . Annual 
registration of pesticides 
offered for sale v;ithin fJorth 
Carolina and pesticide 
applicator licensing and 
certification is administered by 
tlie Pesticide Section. 

Mailing Address: 

Food and Drug Protection 

Division 

N. C. DoDartmcnt of Agriculture 

4000 Reedy Creek Road 

Raleigh, NC 27607 

Telephone: (919) 733-7365 

Mailing Address: 

Pesticide Section 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-3556 

5) Marketing 

The Marketing Division promotes 
tlio sale of North Carolina 
agriculture food products, 
reports farm prices on major 
commodities and determines and 
certifies tlie official grade of 
farm products. The Marketing 
Division also organizes special 
livestock sales. arranges 
buyer-rellcr contacts, providc-s 
marketing advice and assistance 
to producers. processors and 
handlers and administers the N. 
C. Egg Lav; and the Farm Products 
marketing and branding law. 



250 



NORTH CAROLINA REGISTER 



Regional Farmers' Markets in 
Raleigh, Cliarlotte and Ashevillc 
arc also operated by the 
Marketing Division. 

Mailing Address: 

Marketing Division 

N.C. Dcpartmcn of Agriculture 

P. 0. Box 27647 

Ralcigli. NC 27611 

Telephone: (919) 733-7887 

6) Museum of Natural History 

The Museum of Natural History 
Division maintains collections 
and disseminates knowledge 
concerning the natural history 
(flora, fauna, minerals, fossils 
and ecology) of North Carolina 
through ( 1 ) temporary and 
permanent exhibits; (2) 
systematic collections and data 
files in the charge of taxonomic 
specialists trained to solve 
problems of identification and 
classification; (3) ecological 
and other field studies of 
southeastern biota; (4) 
educational services including 
teacher education programs, 
vocational training, curriculum 
and program development , 
classes, lectures and 
preparation of popular and 
educational materials on natural 
history tonics; (5) publication 
of natural history books, 
papers, articles, pamplilets, and 
similar materials; and (6) 
operation of the N. C. Maritime 
Museum . 

Mailing Address: 

Museum of Natural 

History Division 

N. C. Department of Aqriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-7450 

Mailing Address: 

N. C. Maritime Museum 

N. C. Department of Agriculture 

315 Front Street 

Beaufort, NC 28516 

Telephone: (919) 728-7317 

7) North Carolina State Fair 

The North Carolina State Fair 
Division is responsible for the 
annual North Carolina State Fair 
in October. During non-Fair 
time, the North Carolina State 
Fair rents various Fair 
Facilities to the general public 
for special events. 

Mailing Address: 

N. C. State Fair Division 

N. C. Department of Aqriculture 

1025 Blue Ridge Blvd. 



Raleigh, NC 27607 
Telephone: (919) 733-2145 

8) Plant Industry 

Tlie Plant Industry Division 
performs fertilizer and seed 
e.xaminat ions to check for 
accuracy in labeling and quality 
of product. The division also 
administers Plant Pest laws. 

Mailing Address: 

Plant Industry Division 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-3930 

9) Public Affairs 

The Public Affairs Division 
is responsible for disseminating 
pertinent information to the 
public through news releases and 
otlier media contacts. The 
division is also responsible for 
publishing "Agriculture Review." 
Media questions may be directed 
to the division, and they will 
bo channeled to the proper 
individual if further expertise 
is required. 

Mailing Address: 

Public Affairs Division 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-4216 

10) Research Stations 

Fifteen stations, (9 owned 
by NCDA, 6 owned by NCSU and 
operated by NCDA) comprise the 
Research Stations Division of 
the Department of Agriculture. 
The rcscarcli stations cooperate 
vjith scientists at the 
land-grant universities to 
develop new agronomic products 
and trends, working in 
conventional crops but also 
working in new crops to the 
state. Research is also 
conducted on the State Farms, 
whose primary purpose is to 
produce food for state 
institutions . 

Mailing Address: 

Research Stations Division 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-3236 

1 1 ) Standards 

Tlie Standards Division 
administers the weights and 
measures program which includes 
the verification of the accuracy 



NORTH CAROLINA REGISTER 



251 



of commercial weighing r.nd 
measuring devices and the 
inspection of packaged items for 
compliance with net contents 
statements. The division also 
tests petroleum products and 
inspects LP Gas installations. 

Mailing Address: 

Standards Division 

N. C. Dooartmcnt of Agriculture 

P. 0. Box 27547 

Raleigh, HC 27611 

Telephone: (919) 733-3313 

12) Structural Pest Control 

The Structural Post Control 
Division is rosponsihle for 
licensing commercial pest 
control operators viithin Nortli 
Carolina. It is also the 
responsibility of the division 
to inspect the quality of work 
performed by licensed operators, 
and to enforce pesticide safety 
requirements . 

Mailing Address: 

Structural Pest Control Division 

N. C. Departmoiit of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-5100 

13) Veterinary 

The Veterinary Division 
monitors all animal disease 
outbreaks and administers animal 
health programs in North 
Carolina. The division also 
provides veterinary diagnostic 
services and animal health 
inspections. All processing and 
slaughter facilities in tlie 
state are inspected by the 
division to insure cleanliness 
of the operation and 
vjholesomeness of the finished 
product. The division also 
regulates dog and cat dealers 
under the Animal Welfare Act. 

Mailing Address: 

Veterinary Division 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27511 

Telephone: (919) 733-7601 

Mailing Address: 

Rollins Diagnostic Laboratory 

2101 Blue Ridge Road 

P. 0. Box 12223 

Cameron Village Station 

Raleigh, NC 27605 

Telephone: (919) 733-3986 



B. 



Boards and/or Com.missions 



1) North Carolina Agricultural 
Hall of Fane Board of 
Directors 



The North Carolina Agricultural 
Hall of Fame Board of Directors 
i.'as created by G.S. 106-568.14. 
The eight-member Board of 
Directors is composed of the 
Commissioner of Agriculture, tlie 
Director of tlie liorth Carolina 
Extension Service, the State 
Supervisor of Vocational 
Agriculture, the President of 
the North Carolina Farm Bureau, 
and the Master of the State 
Grange, as ex-officio members, 
and three members appointed by 
tlio Governor . 

The Board of Directors 
is authorized to adopt rules and 
regulations which govern the 
acceptance and admission of 
candidates to bhe North Carolina 
Agricultural Hall of Fame Rules 
promulgated by the board are 
codified in 2 NCAC 31 . 

Mailing Address: 

Public Affairs Division 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 2761 1 

Telephone: (919) 733-4216 

2) Board of Agriculture 

Tlie Board of Agriculture was 
created by G.S. 106-2. The 
eleven-member Board of 
Agriculture is composed of tlie 
Commissioner of Agriculture, an 
c.x-officio menbor v;ho serves as 
tiie board's Cliairman, and ten 
members appointed by tlie 
Governor . 

The Board of Agriculture is a 
policymaking body with respect 
to the improvement of 
agriculture and a rulemaking 
body with respect to all 
programs administered by the 
Depart:Tient of Agriculture, 
e.xclusive of Pesticides, Plant 
Conservatioji , Gasoline and Oil 
Inspection and Structural Pest 
Control . Rules promulgated by 
the board are codified in 2 
NCAC . 

Mailing Address: 

Secretary, Board of Agriculture 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-7125 

3 ) Board of Crop 
Seed Improvement 

Tlie Board of Crop Seed 
Improvement wa.T created by G.S. 
106-269. The board promotes the 
development and distribution of 
pure strains of crop seed to 



252 



NORTH CAROLINA REGISTER 



North Carolina farmers. Tlic 
board is autiiorized to adopt 
rules and regulations whicli 
relate to the certification of 
pure crops seeds. Rules 
IDromulgated by tlie board are 
codified in 2 NCAC 29. 

Mailing Address: 

Board of Crop Seed Improvement 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NO 27611 

Telephone: (919) 733-3930 

4) State Farm Operations 
Commission 

The State Farm Operations 
Commission vias created by G.S. 
106-26.13. The seven-member 
committee develops policies for 
the use and operation of the 
State Farm Units. 



rule changes related to this 
area. The board also is 
required to attend any hearing 
for a license to operate a 
public livestock market. 

Mailing Address: 

Veterinary Division 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-7601 

7) Advisory Commission for the 
Museum of Natural History 

The A.dvisory Commission for the 
Museum of Natural History was 
created by G.S. 143-370. The 
nine-member commission 

establishes policies for the 
Museum and works to promote and 
develop the Museum and its 
resources . 



Mailing Address: 

State Farm Operations Commission 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-3236 

5) Gasoline and Oil Inspection 
Inspection Board 

The Gasoline and Oil Inspection 
Board vie.-- created by G.S. 
119-26. The five-member board 
is composed of the Commissioner 
of Agriculture, the Director of 
the Standards Division and throe 
members appointed bj' the 
Governor . 

The board is authorized to 
adopt rules and regulations 
which govern the quality, 
labeling, transportation and 
inspection of liquid motor 
fuels, kerosene and other 
heating oils. Rules promulgated 
by the board are codified in 2 
NCAC 42. 

Mailing Adross: 

Standards Division 

N. C. Department of Aqriculture 

P. 0. Box 27647 

Raleigh, NC 2761 1 

Telephone: (919) 733-3313 

6) North Carolina Public 
Livestock Market 
Advisory Board 

The North Carolina Public 
Livestock Market Advisory Board 
was created by G.S. 106-407.1. 
Ti^c eight-member hoard serves in 
an advisory capacity to tlie 
Commissioner of Agriculture and 
the Board of Agriculture on 
issues which relate to the 
livestock markets and proposes 



Mailing Address: 

Museum of Natural History 

N. C. Depai'tmont of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-7430 

8) Structural Pest 
Control Committee 

The Structural Pest Control 
Committee was created by G.S. 
106-65.23. The five-member 
committee is authorized to adopt 
rules and regulations which 
regulate Structural Pest Control 
activities. The committee is an 
occupational licensing board 
vjith respect to Structural Pest 
Control operators in North 
Carolina. Rules promulgated by 
the committee are codified in 2 
NCAC 34. 

The committee has the authority 
to deny, revoke, suspend or 
modify the license. certified 
applicator's card or 
identification card of any 
person adjudged to have violated 
the Lav; or Regulations. 

Mailing Address: 

Secretary, Structural Pest 

Control 

Committee 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-6100 

9) North Carolina 
Pesticide Board 

The Pesticide Board was created 
by G.S. 143-436. The 
seven-member board is authorized 
to adopt rules and regulations 
wJiich govern the nonstructural 



NORTH CAROLINA REGISTER 



253 



application, sale, disposal, and 
registration of pesticides and 
the licoiisiiig and certification 
of pesticide applicators. The 
board is an occupational 
licensing hoard with respect to 
commercial pesticide applicators 
and private pesticide 
applicators. Rules promulgated 
bjf the board are codified in 2 
NCAC 9L. The board has the 
authority to access civil 
penalties against any person 
adjudged to have violated the 
Law or Regulations and to 
suspend, revoke, deny or modify 
the licenses of persons adjudged 
to have violated the Law or 
Regulations . 

Mailing Address: 

Secretary, North Carolina 

Pesticide Board 

N. C. Departir.cnt of Agriculture 

P. 0. Bo.x 27647 

Raleigh, NC 27611 

Telephone: (919) 733-3556 

10) Pesticide Advisory 
Committee 

The Pesticide Advisory 
Coinmittes i.'as created by G.S. 
143-439. The sevcntcen-member 
committee is appointed by tlie 
Pesticide Board. The committee 
serves in an advisory capacity 
to the Commissioner of 
Agriculture and the Pesticide 
technical questions 
to it and the 
of rules and 
which relate to 



Board on 
submitted 
development 
regulations 
pesticides . 



Mailing Address; 

Pesticide Advisory Committee 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-3556 



11) North Carolina Plant 
Conservation Board 

Tlio North Carolina Plant 
Conservation Board was created 
hy G.S. 106-202.14. Four 
;,;cmbers of tlic seven-member 
board are appointed by the 
Governor and tlie remaining 
members are appointed by the 
Commissioner of Agriculture. 
Tlio board is authorized to adopt 
rules and regulations v;hich 
classify plant species as either 
endangered, tJircatened or of 
special concern wlien necessary, 
and regulate tlie handling of 
classified plants. Rules 
promulgated by the board are 
codified in 2 NCAC 10. 

Mailing Address: 

Plant Protection Section 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-6950 

12) North Carolina Plant 
Conservation Scientific 
Committee 

The North Carolina Plant 
Conservation Scientific 

Committee was created by G.S. 
106-202.17. Tlie ten-member 
committee serves in an advisory 
capacity to the North Carolina 
Plant Conservation Board on 
matters relating to plant 
species classified as eitlicr 
endangered, threatened or of 
special concern. 

Mailing Address: 

Plant Protection Section 

N. C. Department of Agriculture 

P. 0. Box 27647 

Raleigh, NC 27611 

Telephone: (919) 733-6930 



254 



NORTH CAROLINA REGISTER 



PROPOSED RULES 

TITLE 2 - AGRICULTURE 

Notice is liereby given in 
accordance with G.S. 150B-12 
that the N.C. Board of 
Agriculture int uds to amend 
regulation cited as 2 NCAC 9B 
.0022(7) & (8). The purpose of 
the proposed regulation is to 
update adoption by reference to 
include federal infant formula 
standards . 

The proposed effective date of 
this action is December 1, 1986. 



Agriculture Bldg., 
St., Raleigh, N.C, 



1 W. Edenton 



Statutory Authority: 
106-139; 150B-14. 



G.S. 



The public hearing will be 
conducted at 2:00 p.m. on 
October 16, 1986 at Board Room, 
Agriculture Bldg., 1 W. Edenton 
St., Raleigh, N.C. 

Comment Procedures: Interested 
persons may present statements 
either orally or in writing at 
the public hearing or in writing 
prior to the hearing by mail 
addressed to David S. McLeod. 
Secretary of the North Carolina 
Board of Agriculture, P.O. Box 
27647,. Raleigh, North Carolina 
27611 . 



CHAPTER 9 - FOOD AND 

DRUG PROTECTION DIVISION 

SUBCHAPTER 9B - RULES AND 
STANDARDS ADOPTED BY REFERENCE 

.0022 FOOD FOR HUMAN 
CONSUMPTION 
(7) 106 Infant Formula 

Q uality Control t^rocoduros 
(87 107 Infant Formula 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the N.C. Board of 
Agriculture intends to adopt 
regulations cited as 2 NCAC 9B 
.0032 and .0033. The purpose of 
the proposed regulations is to 
establish a uniform date for 
rules adopted by reference and 
provides public with information 
concerning access to documents 
adopted by reference. 

The proposed effective date of 
tliis action is December 1, 1986. 



Comm 

pcrs 

cith 

the 

prio 

addr 

Seer 

Boar 

2764 

2761 



ent Procedures: Interested 
ons may present statements 
er orally or in writing at 
public hearing or in writing 

by mail 



r to the hearing 
essed to David 
etary of the North 
d of Agriculture, 
7, Raleigh, North 
1 . 



McLeod, 

Carolina 

P.O. Box 

Carolina 



SUBCHAPTER 9B - RULES AND 
STANDARDS ADOPTED BY REFERENCE 

.0032 EFFECTIVE DATE FOR 
ADOPTIONS BY REFERENCE 

All documents adopted by 
reference in 2 NCAC 9B shall be 
those documents in effect as of 
July 1, 1986. 

.0033 DOCUMENT AVAILABILITY 

Copies of documents 
adopted by reference in 2 NCAC 
9B .0021 through .0030 are 
available for inspection in the 
Office of the Director of the 
Food and Drug Protection 
Division and may be obtained at 
a cost as determined by the 
publisher by contacting the 
Superintendent of Documents, 
Government Printing Office, 
Washington, D.C. 20402. 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the N.C. Board of 
Agriculture intends to repeal 
regulations cited as 2 NCAC 9E 
.0012. The purpose of the 
proposed regulation is to delete 
unnecessary regulations. 

The proposed effective date of 
this action is December 1, 1986. 



Statutory 
106-28.41 . 



Authority : 



G.S. 



Statutory Authority: 
106-139; 15CB-14. 



G.S. 



The public hearing will be 
conducted at 2:00 p.m. on 
October 16, 1986 at Board Room, 
Agriculture Bldg., 1 W. Edenton 
St., Raleigh, N.C. 

Comment Procedures: Interested 
persons may present statements 
either orally or in writing at 
the public hearing or in writing 
prior to the hearing by mail 
addressed to David S. McLeod, 
Secretary of the North Carolina 
Board of Agriculture, P.O. Box 
27647, Raleigh, North Carolina 
27611 . 



The public liearing will be 
conducted at 2:00 p.m. on 
October 16, 1986 r.t Board Room, 



SUBCHAPTER 9E 



FEED 



,0012 GOOD MANUFACTURING 
PRACTICES (REPEALED) 



NORTH CAROLINA REGISTER 



255 



Notice is hereby given in 
accordance with G.S. 150B-12 
that the N.C. Board of 
Agriculture intends to amend 
regulations cited as 2 NCAC 9G 
.0101(1). The purpose of the 
proposed regulation is to update 
adoption by reference. 

The proposed effective date of 
this action is December 1, 198S. 



prior to the hearing by nail 
addressed to David S. McLeod, 
Secretary of the North Carolina 
Board of Agriculture. P.O. Bo.x 
27647, Raleigli, North Carolina 
27611 . 

SUBCHAPTER 9K - SAtlPLING 

AND TESTING OF MILK AND 
CREAM: FROZEN DESSERTS 

SECTION .0200 - FROZEN DESSERTS 



Statutory Authority: G.S. 
106-139; 106-267; 106-267.2. 

The public hearing will be 
conducted at 2:00 p.m. on 
October 16, 1986 at Board Room, 
Agriculture Bldg.. 1 W. Edcnton 
St., Raleigh, N.C. 

Comment Procedures: Interested 
persons may present statements 
either orally or in writing at 
the public hearing or in writing 
prior to the hearing by mail 
addressed to David S. McLcod, 
Secretary of the North Carolina 
Board of Agriculture, P.O. Bo.x 
27647, Raleigh, North Carolina 
2761 1 . 

SUBCHAPTER 9G - MILK AND 
MILK PRODUCTS 

SECTION .0100 - PASTEURIZED 
MILK ORDINANCE 

.0101 ADOPTION BY REFERENCE 
( 1 ) "Milk for Manufacturing 
Purposes and Its Production 
and Processing, Reconri.icnded 
Requirements," U . G ■ 

B-c^^ja t m cnt trf Ag r i c u -Hr ur c, 
37 Fed. Reg. 7046 (1972) as 
amen ded in 50 Fed. Reg. 
34726 (1985). 



Notice is hereby given in 
accordance with G.S. 150B-12 
that the N.C. Board of 
Agriculture intends to amend 
regulations cited as 2 NCAC 9K 
.0212. The purpose of the 
proposed regulation is to adopt 
coliform count for sherbet. 

The proposed effective date of 
this action is December 1, 1986. 

Statutory Authority: G.S. 
106-248; 106-253; 106-267. 

The public hearing will be 
conducted at 2:00 p.m. on 
October IG. 1986 at Board Room, 
Agriculture Bldg., 1 W. Edcnton 
St., Raleigh, N.C. 

Comment Procedures: Interested 
persons may present statements 
either orally or in writing at 
the public hearing or in writing 



.0212 BACTERIAL PLATE 

COUNT AND COLIFORM COUNTS 

Ice cream, other frozen milk 
products, water ices, and all 
mi.xcs in dry form, sliall at no 
time after pasteurization and 
until delivery for consumption, 
shov; a bacterial plate count in 
excess of 50,000 bacteria per 
gram; provided. frozen yogurt 
mix products are r.ot subject to 
the 50,000 bacteria per gram. 
Coliform counts shall not exceed 
10 colonies per gram for plain 
or 20 colonies per gram for 
chocolate, fruit, nut or other 
flavor-^.; and col i form count for 
all sherbet .sh-ill not e.xcecd 10 
colonio;? pc^^ gram. 

Notice is hereby given in 
accordance with G.S. 150B-12 
that tlie N.C. Board of 
Agriculture intends to amend 
regulation cited as 2 NCAC 48A 
.0608. The purpose of the 
proposed regulation is to 
ectablisli procedures for 
reporting cotton acreage and 
cliar.go reporting date. 

The proposed effective date of 
tills action is December 1. 1986. 



Statutory Authority: 
106-65.77; 106-65.91. 



G.S, 



The public hearing will be 
conducted at 2:00 p.m. on 
October 16, 1986 at Board Room, 
Agriculture Bldg., 1 W. Edenton 
St.. Raleigh. N.C. 

Comment Procedures: Interested 
persons may present statements 
either orally or in vjriting at 
the public hearing or in writing 
prior to the hearing by mail 
addressed to David S. McLeod, 
Secretary of the North Carolina 
Board of Agriculture, P.O. Bo.x 
27647. Raleigh. North Carolina 
2761 1 . 



CHAPTER 48 



PLANT INDUSTRY 



SUBCHAPTER 48A - PLANT 
PROTECTION 

SECTION .0600 - BOLL WEEVIL 



256 



NORTH CAROLINA REGISTER 



.0608 REPORTING OF ACREAGE: 
LOCATION OF COTTON ACREAGE 
All cotton farm operators 
and grovjcrs of noncommercial 
cotton in an elimination zone 
shall submit a Cotton Acreage 
Reporting Form by t-hc -l-Sirh trf 
Aprri June 1 5 of the current 
grovjing season to the county 
ASCS office . A report shall be 
filed for each year of 
participation in the program. 

(1) Noncommercial cotton 
shall not be planted in an 
elimination zone. Growers of 
noncommercial cotton in an 
elimination zone may apply 
for a vjaiver to grow cotton 
in an elimination zone. 
Applications, in writing, 
sliall be made to the plant 
pest administrator stating 
tlie conditions under which he 
requests such waiver. The 
decision wliether or not to 
v-iaivo all or part of these 
requirements shall be based 
on the following: 

(a) location of growing area; 

(b) size of growing area; 

(c) pest conditions in the 
growing area; 

(d) accessibility of growing 
area; 

(e) any stipulations set 
forth in a compliance 
agreement between tlie 
individual and the 
Department of Agriculture 
that are necessary for the 
effectuation of the program. 

(2) Vi/ritten application 

for waivei's shall be made to 
the plant pest administrator 
for review. 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the N.C. Board of 
Agriculture intends to amend 
regulation cited as 2 NCAC 48A 
.0610. The purpose of tlie 
proposed regulation is to 
designate tlie State of North 
Carolina as an elimination zone 
for the boll weevil eradication 
program . 

The proposed effective date of 
this action is December 1, 1986. 



Statutory Authority: 
106-65.77; 106-65.91. 



G.S. 



The public hearing will be 
conducted at 2:00 p.m. on 
October 16, 1986 at Board Room, 
Aqriculturo Bldg., 1 W. Edenton 
St., Raleigh, N.C. 

Comment Procedures : Interested 
persons may present statements 
either orally or in vjriting at 
the public liearing or in writing 



prior to the hearing by mail 
addressed to David S. McLeod, 
Secretary of the North Carolina 
Board of Agriculture, P.O. Box 
27647, Raleigh, North Carolina 
2761 1 . 

SECTION .0600 - BOLL WEEVIL 

.0610 DESIGNATED AREAS FOR 

BOLL Vm'EEVIL CONTROL 

Tlic f o llov .' i iTg areas 

tnrc r cgula ireti under ■this 

provisions trf this Section . 

( 1 ) TIt^ Nortiicrn E^-iminat ion 

Zone c o nsists tr£ ttert p or t i o n 

o^ North Carol ina lying east 

a nd n o rtl ' TOas t trf a line 

be g innin g a-t a point wli e r c 

t-)TC Roc kingham Gasv? G ll C o un t y 

i-o^rro -i n t e r s e c t s the Vi rg inia 

Sta te line, t henc e s o u b h 

along said d me tro "xt-s 

vnTTt Tne 

H. a ll ianc e County 

line , thenire stju-bh along said 

d ine t"0 itrs juj'ic t ion with "tho 

r .a n dolph Ch at ham County lino , 

thence strtrtiT al o ng ssrrd line 

"to "i t^ 3'^^^'-'^ itm with the 

Moo r e — Cha t liam Coun ty line , 

t h e n c e e-ss+ alcng said line 

tro itrs jun ct io Tt vji t li titc 

fiOOTrc — bee C o unty line , t hence 

TToutii and ett:!rt along said 

line t-o -irt-s jun c ti o n with the 

Mo or e Harnet t C o u n t y lin e , 

thcTCc s o u t h atrd vjes t al o ng 



^a id 
twirth 




line trr irb-s -jv 
trite Hoke — H ainebt C o unty 
thence "sou+h and east 
sai d c o unty line ±t3 -irts 
W"irirrt the 

{anretrt C o un t y 

trhcnce north and cast 
l i ne to irts 
wi-Hi State I 
t lien c e sottbh and 
road 
wirth 




along said 
junct ion 
Bladen Cuml 
iriiTe-r th e n ce 
along saici 
jtn iction 
fcl-ad en Sa mp s - 
ti i e ncc sou t li 



iro 



etrst 

it s 

the 

Coun t y 

north anti ecis t 

1 ine to its 

wirbh the 

€ ounty lin e , 

arrd eaist along 



said line to -its junction 
witli tlTo Bladen Pen d e r County 
jrr n e-,- tli-eiToc :south along said 
iinc to its June t ion with the 
eoxttiJifatrs— PcTtde-r Sounty line, 
•H i e nce Knrst al o ng said lin e 
to -its junction w ith tli e 
Bya ns vfi ck Pender C o un t y line , 
thcrrce cas t al o ng said 1 ine 
■to -its junc t ion w-ith t h e New 
County i-irre-r 
n o r t heas t arrd 

on said 1 ine to it s 

witlt the A t lan t i c 
T-htrt iJortioTt of North 

e as t rrrrd 

1 iiTO im c 1 u d e s the 



thence 

sotithtfe s b 

trcmctiron 

Re can . 

G ar ol-inTa 

rr£ tlte 

en t i re c o un t ies 



NORTH CAROLINA REGISTER 



257 




6ain d cn , 

Gi nrt-iTrrnrr 

Cu L T -jrt uck. 

Duriramr 

Ilali fttxr 

L e noir , 



Jones , hcrcrr 
JfarrjTT Ifo-r"bhcmp-trcTi— 
Oi'anycT Paml tco f 



ao-htrstji 

M=r-t-irrr 

O nsl o vr — 

r asqu o l " ank, Ptmd 

P e rq uimans , Person, Prirt-r 

Sa. i ip :>o ii, Tyr rull , Vj nce , 

W ake , Wa rr en, Wa s hin gton , 
W jynG , V Jilson, and -bhra-t area 
tyr Cuinbor 1 and County 03^^ ox 
S t a te H-d-5- hway OT^ 
•fS-)- TItc Gou t l - icrn El imina t i on 
Zone cro Tisis t s o^ An son , 
B-l ad en, Clc vc dar;d , 

rtrrrrd-r Davie , Gastor rr 
Ir e d e ll , f!ctr!c 
Rt 
arrd yrriron Somr bics . 
Tl'iC non infest cd ere a txf 
x-tcrtt; co n s is t s trf triri 
P ci rt-s o-f this -~i: a t e ■ nrrfc 
inc luded -in -thx? n or'trhcro err 




45^- 



■southern c±-iiirin-al-ion 
(a) For the purposes 


xoi'ie . 
of this 


Section, the entire 


state of 


North Carolina 


shall 


constitute an el 


iminat ion 



■f44 

(b ) A regulated area 

consists of any other state 
or any portion of such state 
infested with boll v;ecvil . 

Notice is hereby given in 
accordance v^Iith G.S. 150B-12 
that the N.C. Board of 
Agriculture intends to amend 
regulation cited as 2 NCAC ^8A 
.0611. Tlie purpose of the 
proposed regulation is to 
establish the requirements for 
participation in the boll weevil 
eradication program; change the 
acreage fee, and change the 
acreage reporting date. 

The proposed effective date of 
this action is December 1, 1986. 



Statutory Authority: 
106-65.77; 106-65.91 . 



;.s. 



The public hearing will be 
conducted at 2: 00 p.m. on 
October 16, 1986 at Board Room, 
Agriculture Bldg., 1 VJ . Edeuton 
St., Raleigh, N.C. 

Comment Procedures: Interested 
parsons may present statements 
either orally or in writing at 
the public licaring or in writing 
prior to tlio heaving by mail 
addressed to David S. McLcod, 
Secretary of the Nortli Carolina 
Board of Agriculture, P.O. Bo.x 



276';7, Raleigli, North Carolina 
27611 . 

.0611 REQUIREMENTS FOR 

PROGP^AM PARTICIPATION 
All cotton farm operators in 
the state are hereby required to 
participate in the eradication 
program. Participation shall 
include timely reporting of 
acreage and field locations, 
compliance with regulations, and 
payment of fees . Farm operators 
v;ithin the elimination zone, 
shall be notified through the 
extension offices or newspapers 
of tlieir program costs on a per 
acre basis on or before Marcli 
15. The following procedures 
are required for participation 
in the program: 
(1) Filling out a Cotton 

Acreage Reporting Form at the 
ASCS office by Ap ril Jun e 15 
of the current growing season 
for which participation is 
desired. At this time a 
nonrefundable fee of -frrc ten 
dollars (?5. 00 ) ( C- 1 . ) per 
acre -in tltc nor-fchtrm 

ox"i:im:ncHr:iXyTr zone and ^ivc 
do lla r s -f-v 5 . 0-)- porr acr e; d-n 
the s out hern el ini ma b ion 
zon e , based on t+rtrt cort i f icd 
acreage reported by tiie farm 
operator, shall be paid. 
Those farm operators not 
reporting their acreage by 
Aprrri Juno 15 will not be 
considered as a pi'ogram 
participant. All acreage 
reported by such 
non-participants after A pril 
Juno 15 will be considered in 
excess and subject to 
penalty . 
-f^-)- Ort or be f or e trh-e +s-b orf 
July , "Hto rcTTra-ir iin g sl ' ^arc of 
trio i^tnrm op'.L'i'a b or i payment ox 
fi-Try doil^rrs (05 . 00) ^for 
trhos-cr a c rea g es -irt ■b-lre 



a c rea g es art 
lior t hern e-J-im-irnrt-rort zone triTd 
tT:m d o ll ars (0 10 . O B-)- fox 
a c r e ag e -irr sot ibhcrn 
cl in iiTCJt ion zone T^l'ial 1 bt? 
paid . Pxrrai a- d jus tm cnt v;ill 
bo ba-sed on A&SS nrctrstn.-xrd 
ac rc a C ) 'c orf r e p or t e d f i c 1 d -nrr 
tf me a sured trcxoag^ -irs rro-b 
avail -afelrc fay Jtriy + "tho 
rcm ain rrn-g s- ha rc shall bo 
on 'fc'iTo AGC5 cci'tiriod 
Any final 
^T^ju£, t iiicnt :Trrsod on measured 
ttcxoago srial 1 00 made upon 

iiTotrsurxird a c re a ge by ASCS or 

pxogimm porsonnel . 
-(-^4 1?J. All fcos r.hnll be paid 

by tlic farm operator . Fees 

siiall be m<uIo payable to and 

coll.-ctcd by ASCS. 
Farm operator:; in 



258 



NORTH CAROLINA REGISTER 



the elimination zone whose ATJCS 
measured acicnge cxccccIg the 
grower reported acrcnyc hy more 
tlian 10 percent, shall bo 
assessed a penalty fee of five 
dollars ($5.00) per acre on that 
acreage in excess of the 
reported acrcar^. Any person 
v/hose reported acreage exceeds 
the ASCS measured acreage by 
more than 10 percent due to 
emergency or hardship conditions 
may apply for a waiver. Any 
farm operator applying for a 
vjaiver shall make applicaticii in 
vjriting to the plant pest 
administrator stating the 
conditions under vjhicli he 
requests such v/aivcr . VJaiver 
requests involving financial 
hardship must bo accompanied by 
a financial statement from a 
bank or lending agency. All 
farm operators gra;itcd waiver 
requests for financial hards'iip 
will be charged interest payable 
at a rate equal to 15 percent 
per annum. The decision ivhctlier 
or not to waive all or part of 
these requirements shall be made 
by the pla}it pest atlministrator 
and notification given to the 
farm operator within two weeks 
after receipt of such 
application. Decision shall be 
based on the following: 
mctorological conditions, 
economic conditions, and any 
other uncontrollable destructive 
forces . 

Failure to pay all remaining 
fees on or before July 1 of the 
current growing season will 
result in a penalty fee of ten 
dollars ($10.00) per aero. 
Failure by a farm operator to 
pay all program costs as of July 
■t& J_ or upon notification of 
A.SCS measured acreage, v;hichcver 
is later, shall be a violation 
of this Section. The farm 
operator when found in violation 
of this Section and upon 
notification shall completely 
destroy all cotton not found to 
be in compliance witli tlie 
provisions of this Section. If 
such farm operator fails to 
comply with these Regulations, 
the Commissioner of Agriculture, 
through his duly authorized 
agents, shall proceed to destroy 
such cotton, tmd :rfitixi coMp tstxr 
the cxrttmi ctrs-btr -erf If.bor znrd 
mzi tei - i -zris used — tnrd -Htc ■iarnt 
opc-i-a box rrhiil-i p'oy t-o the 
en-mrris-s-rorrc-r ry£ Agricul t ur e -such 
nsscssrrd ctysts-r No damtrjc -shcrii 
bo -^rrcrrtkrd the r/ro w^r o-f c iich 
■etrirt-oTt irrr tnr bcrin g ■tri ierc o n mitl 
d estr o ying any ctrt-boit nlTcn don e 
by ■H-k; o-rticx tri "the €k)mnr issi cn-:rr 
ry£ 2\g-rd-cttx-fctrrc-r in accordance 
vj.-ith the provisions of Article 4 



hardship 

all the 
the program 
prior to the 



an d Article 36 of Chapter 106 o f 

tl^e No rth Carolina General 

Ltatutc:^ 

Acreage subject to 
conditions after 
growers' share of 
l»ave been paid and 
initiation of program field 
operations may be considered for 
a refund. The refund amount 
v;ill be determined by the actual 
program cost per acx'e up to the 
time of hardship. 

Notice is licrcby given in 
accordance witli G.S. 150B-12 
that the N.C. Bo^rd of 
Agriculture intends to amend 
regulation cited as 2 NCAC 48A 
.0612(a), (b), (c) & (d). The 
purpose of the proposed 
regulation is to require certain 
cotton growers to destroy stalks 
before February 1 . 

The proposed effective date of 
this action is December 1, 1986. 



Statutory 
106-65.73; 



Authority: G.S. 
106-65.74; 106-65.77. 



The public hearing will be 
conducted at 2.00 p.m. on 
October 16, 1986 at Board Room, 
Agriculture Bldg., 1 W. Edenton 
St., Raleigh, N.C. 



Comm 

r-cri 

c-itli 

the 

prio 

i^ddr 

Seer 

Boar 

2764 

2761 



ent Procedures : Interested 
ons may present statements 
er orally or in writing at 
public hearing or in v;riting 



r to the hearing by mail 
essod to David S. McLeod, 
etary of the North Carolina 
d of Agriculture, P.O. Bo.x 
7, Raleigli, North Carolina 
1 . 



,0612 



COTTON STALK 
DESTRUCTION 
CT3-irton -foT-m op e ra t ors 

cry cTxl" CTrt ton stalks 
f-idrd-s hTS' 2 oTC Februa r y 
c c ch ytrtnrr Upon 
not ifica t ion in v rriti nq by tlie 
Co ■^^ mj^ " sioncr of Aq r i cultu ro ■ any 
fa vm onor n tor may be ordered to 
d cstr oy standing cotton stallcs 
in lijs fields when it is deemed 




th 

CO 

iia 

£0 
Su 
sh 

di 
el 
st 
de 



at 



ruch 



cotton 



stalks 



n st ituto 
rho r ina 
p ulat ion 



notent ial 



for 



overv;.intering 



lioll 



weevils . 



ch cotton stalk destruction 
all consist of shredding or 
scing as necessary to 
iminate standing co tt on 
alks . Such n otification will 
sinnatc vjhich fields are 



SI! 


b joe 


t to 


stalk de 


struct 


ion . 


Do 


si on 


at ion o 


f fields 


sub ice 


t to 


st 


alk 


destruc 


tion will 


be b 


ased 


on 


the 


captui 


ing of at 


least 


tv.'o 


ad 


ult 


boll 


weevils 


bet 


v;een 



NORTH CAROLINA REGISTER 



259 



Septombcr 15 and Deccmhor 15 of 



a calendar voar . 


Anv 


f 


iold 


vihich 


is adiace 


it 


1 


o 


a 


dosirrna 


ted field mav 


al 


•-0 


be 


su!-)icct 


to stalk 


d 


3s erne 


t 3 on 


upon 


notification 




by 




the 


con-^iss 
(b) An 


ioner . 

V farm operat 


or 


3ns 


of 




subicct 


to the provi 


r, i 


(a) 


shall d 


Gstrov the cott 


on 


St 


al!cs 


before 


Fcbruarv 


1 


of 




the 



Agriculture Bldg., 1 
St., Raleigh, N.C. 



W. Edcnton 



follov;inq calendar yea r. Any 
cotton stalks not destroyed 
before February 1 shall be 
treated as regulated articles 
for the purposes of 6.S. 
106-65.73. A:iy «n?irte field 
containing such stalks tnrbcT" 
Jc L ' Aus ry tri- on February 1 shall 
be quarantined until such stalks 
are destroyed. Any far m 
operator vflio fails to comply 
with this Rule, absent a vjaivcr 
as provided in tc), shall be 
assessed a penalty fee of five 
dollars ($5.00) per ac re. 

(c) Any farm operator 
subject to the provisions of (a) 
who cannot destroj? cotton stalks 
before February 1 due to 
emergency or hardship may apply 
for a waiver. The application 
shall be made in writing before 
January 1 to the plant pest 
administrator stating tlie 
conditions justifying the 
v-jaiver. The plant pest 
administrator shall notify the 
farm operator of his decision 
within two weeks after receipt 
of such application. V.'aivcrs 
shall be approved only if 
justified by emergency or 
hardship due to meteorological 
conditions, economic conditions, 
or other causes beyond the 
control of the farm operator. 

-(■d-)- Any gr o vver who 
r ciil s "to comply with tli i t Rule 
slial 1 bo assessed a p c n ci 1 1 y rcc 
of fivo d ol l ars -HrS^-W)-)- per- 



Notice is hereby given in 
accordance with G.S. 150B-12 
that the N.C. Board of 
Agriculture intends to amend 
regulations cited as 2 NCAC 48A 
.0901(2). The purpose of the 
proposed regulation is to 
designate regulated areas for 
the sweet potato program . 

The proposed effective date of 
this action is December 1, 1986. 

Statutory Author itv; G.S. 
106-65.45; 106-65.46; 

106-284.18; 106-420. 

The public hearing will be 
conducted at 2:00 p.m. on 
October 16, 1986 at Board Room, 



Comment Procedures : Interested 
persons may present statements 
eitlier orally or in v;riting at 
the public hearing or in writing 
prior to the liearing by mail 
addressed to David S 
Secretary of the North 
Board of Agriculture, 
27647, Raleigh, North 
2761 1 . 



McLeod, 
Carolina 
P.O. Box 
Carolina 



SECTION 



,0900 - SWEET 
POTATO WEEVIL 



.0901 REGULATED AREAS 
(2) North Carolina. 

New Hanover County: The 

entire pr m insula island 

bordered on the west by the 
Cape Fear River and on the 
east by the Atlantic Ocean 
and south of that lino 
established from the 

C arol in a B eacli Tn] et from 

the Atlantic Ocean along 
sJohTTSon La nd i n g Ro-otJ wtwrb to 
N6 -1-52— t he n c g s o ut h a l o ng 
yS 4-2-1- app r oxima t ely xrrrs 
iirii-c to -HTtrb socorrdairy r o ' .d 
coirrrcrc-lriTrg US -42+ and },'S 
+-HKH- -Htoitco wost al o n g said 
secondary r-ocrri to NS -H-06-r 
tJTcnoo n o r t h along N6 ++0-9- 
tmtai Ne ++a& intersec t s 
rrith Mott SreclrT t hence wos't 
alrong Kott 6-reek the Intra 
C oastal Waterway at ,Sno v> 
Canal until it reaches the 



Capo Fear River; 



TITLE 4 



COMMERCE 



Not ic 

accor 

that 

Commi 

rcgul 

.0507 

purpo 

regul 

revi 

Class 

dolla 

(05.0 

is 

Minne 

price 

price 

parag 

provi 

audit 

coope 

liave 

price 

stcite 



e IS hereby given in 
dance with G.S. 150B-12 
the North Carolina Milk 
ssion intends to amend 
ations cited as 4 NCAC 7 
(a) and (b)(5). The 
se of the proposed 
ations is to change (a) to 
e the differential in the 
I formula from four 
rs ($4.00) to five dollars 
0) per liundredweight v;hich 



to 



added 
sotn- Wisconsin 

to determine the 
The addition of 
raph (5) to (b) 
dc for flexibility 
ing procedure v;hen the 
rative groups of producers 
agreed upon and announced a 

for millc sold in other 
s or markets . 



the 

average 

Class I 

the new 

is to 

in the 



TIic proposed effective date of 
this action is December 1, 1936. 

Statutory Authority: G.S. 
106-266.8(7), (10). 



260 



NORTH CAROLINA REGISTER 



The public hearing will be 
conducted at 10:00 a.m. on 
September 23, 1986, at The North 
Carolina ABC Commission Office 
and Warehouse, 3322 Garner Rd . , 
Raleigh, NC . 

Comment Procedures: Data, 
opinions and arguments 
concerning these amendments must 
bo submitted by October 1'^, 
1986, to the N. C. Milk 
Commission, 430 N. Salisbury 
Street, Raleigh, NC 27611, 
Attn: Grady Cooper, Jr., 
Executive Secretary. 



CHAPTER 7 - MILK COMMISSION 
SECTION .0500 



MARKETING 
REGULATIONS 



.0507 



MINIMUM CLASS PRICES AND 
BUTTERFAT DIFFERENTIALS 
(a) Class I price for North 
Carolina Sales. Effective Kay 
S- +9-&6-r A ugust 4. 1986, the 
minimum price to be paid North 
Carolina producers and/or 
associations of producers for 
all milk which is processed in 
North Carolina and sold or 
disposed of for consumption or 
use as processed fluid milk 
products in North Carolina and 
classified as Class I, shall be 
the average price per 
hundredvjcight for manufacturing 
grade milk, f.o.b. plants in 
Minnesota and Wisconsin, 
adjusted to a 3.5% butterfat 
I'asis as reported by the U.S. 
Department of Agriculture 
the second preceding month 
-rcroT d o lla rs ^$-4-r&G-)- 
c' Pilars ($5.00) 



for 

plus 

five 

per 

price 



hundredweight. The 
generated under this procedure 
shall be adjusted according to 
the procedures outlined in 
subparagraphs (a)(1) and (a)(2) 
of this Rule and tlic resulting 
price shall be announced in 
accordance with the procedure 
outlined in paragraph (a)(3) of 
this Rule, 
(b) 
(5) Adjustment. The price s 
for milk sold in other 
states or nnrkots shall be 
adjusted downward for the 
purposes of auditing to the 



price agreed 



upon 



and 



announced by the coooer. ^ t ive 
groins of producers selling 



milk 



the 



markets 



a ffected . 

TITLE 7 - CULTURAL RESOURCES 
Notice is hereby given in 



accordance with G.S. 150B-12 
that Cultural Resources intends 
to adopt regulations cited as 7 
NCAC 11 .0100 - .0600. The 
purpose of the proposed 
regulations is to adopt 
regulations to effect and 
encourage restoration, 

preservation and enhancement of 
the appearance and aesthetic 
quality of the U.S. Highway 64 
and 264 travel corridor through 
Roanoke Island. 

The proposed effective date of 
this action is December 1, 1986. 

Statutory Authority: 1981 

Session Laws, Chapter 1194; 1984 

Session Laws, Chapter 1115; 1985 
Session Laws, Chapter 673. 

The public hearing will be 
conducted at 10:00 a.m. on 
October 17, 1986 at Elizabeth II 
Visitors Center, Ice Plant 
Island - Manteo Waterfront, 
Manteo, North Carolina. 

Comment Procedures: Mr. Bart M. 
Bauer s. Chairman, Roanoke 
Voyages and Elizabeth II 
Commission, P. 0. Bo.x 155, 
Manteo, North Carolina 27954. 



CHAPTER 1 1 - ROANOKE VOYAGES 
AND ELIZABETH II 
COMMISSION 

SECTION .0100 - GENERAL 
REGULATIONS 

.0101 PURPOSE 

The purpose of the Roanoke 
Voyages and Elizabeth II 
Com-'nission is to effect and 
encourage restoration, 

preservation and enhancement of 
the appearance and aesthetic 
quality of the U.S. 64 and 264 
Corridor through Roanoke Island 
and to advise the Secretary of 
Cultural Resources pertinent to 
the operation and maintenance of 
Ice Plant Island, the Elizabeth 
II State Historic Site and 
Visitors Center and the 
Elizabeth II. 

.0102 MEMBERS AND SELECTION 
The Roanoke Voyages and 
Elizabeth II Commission shall 
consist of twenty-six voting 
members: twelve appointed by 
the Governor, six of whom shall 
be residents of Dare County; one 
member appointed by the Dare 
County Board of Com.'iissioners to 
represent tlie business 
community; one member appointed 
by the governing board of the 
Town of Manteo to represent the 
business community; eight voting 



NORTH CAROLINA REGISTER 



261 



ex officio members who are the 
Secretary of the Department of 
Cultural Resources; tlio 
Secretary of the Department of 
Transportation; the Secretary of 
the Department of Natural 
Resources and Cor.munity 
Development; the Chairman of the 
Dare County Board of 
Connissioners ; the Mayor of the 
Tov'jn of Manteo; the Chairman of 
the Board of Directors of the 
Friends of Elizabeth II; the 
Site Manager of the Elizabeth II 
State Historic Site; and the 
Chairman of the Roanoke Island 
Historical Association and four 
members appointed by the 
Commission . 

.0103 TERM OF MEMBERS 
Members appointed by the 
Governor shall serve for 
four-year terms, except tliat of 
the initial appointment, six 
shall be for two-year terms and 
six for four-year terms. 
Members appointed by the Dare 
County Board of Commissioners 
and tlie governing board of the 
Town of Manteo shall serve for 
four-year terms. Ex officio 
members may designate a person 
to serve in their stead as a 
member of t'ne commission. 

.0104 VACANCY 

The commission shall appoint 
someone to fill a vacancy on the 
commission created by the 
resignation, dismissal, death or 
disability and said appointment 
shall be for the balance of tlie 
unexpired term. 

.0105 OFFICERS 

The commission shall send 
recommendations for officers in 
writing oacli year at the time of 
the annual meeting to the 
Governor and the Governor shall 
designate from among the members 
of the commission a chairman, 
vice-chairman, secretary and 
treasurer . 

.0105 POV.'ER AND DUTIES 
The povjers and duties of the 
officers of the commission shall 
be as provided from time to time 
by resolution or other directive 
of the voting members. In the 
absence of such provisions, the 
respective officers shall have 
the povjcrs and shall discharge 
the duties customarily and 
usually hold and performed by 
like officers of commissions 
similar in organization and 
purposes to this commission. 

.0107 REMOVAL 
Any officer may be removed by 



the voting members whenever in 
their judgement the best 
interest of the commission v.'ould 
be served tlierel^y. 

.0108 VACANCIES 

A vacancy in any office other 
than the chairman because of 
death, resignation, removal, 
disqualification or otherwise, 
may be filled by the voting 
members for the unexpired 
portion of tlie term. The 
Governor shall designate a 
chairman based on 
recommendations from the 
commission . 

.0109 ANNUAL MEETING 

The annual meeting of 
tlie voting members shall be held 
in October each year for the 
purpose of recommending officers 
and for the transaction of such 
other busines.'-j as may come 
before the meeting. 

.0110 REGULAR AND SPECIAL 
MEETINGS 

The commission shall meet 
quarterly . Special meetings of 
the voting members may be called 
by the chairman and shall be 
called at tlie request of not 
less than three voting members. 

.0111 QUORUM 

Seven members of the voting 
members entitled to vote, 
represented in person or by 
pro,v:y, shall constitute a quorum 
at a meeting of the commission. 
If less than a quorum of the 
voting members are represented 
at a meeting, a quorum of the 
voting members so represented 
may adjourn tiie meeting from 
time to time without further 
notice. At such adjourned 
meeting at which a quorum is 
present or represented, any 
business may bo transacted that 
might have been transacted at 
the meeting as originally 
notified. The voting members 
present at a duly organized 
meeting may continue to transact 
business until adjournment, 
notwithstanding the withdrawal 
of enough voting members to 
leave less than a quorum. 

.0112 PROXIES 
At all meeting of voting 
members, a voting member may 
vote by pro.xy executed in 
v;riting by the voting member. 
Such proxy shall be filed with 
the secretary of the commission 
before or at the time of the 
meeting. No pro.xy sliall be 
vnlid after tlie meeting for 
whicli it was given. 



262 



NORTH CAROLINA REGISTER 



.0113 PLACE OF MEETING 
Tlie chnirman may designate any 
place within Daro County in the 
State of North Carolina an tlic 
place of meeting for any annual 
meeting or for any otlicr 
meeting. A waiver of notice 
signed by al2 voting members 
entitled to vote at a meeting 
may designate any place, cither 
within or without Dare County in 
the State of North Carolina, as 
the place for the holding of 
such meeting. 

.0114 STANDING COMMITTEES 
There shall bo five standing 
committes v;hich are the 
Executive Committee, the 
Standards Committee, the 
Legislative Committee, the 
Utilities Committee and the 
Fundraising Committee. The 
executive committee shall be 
appointed by the Governor and 
shall be the officers unless 
otherwise specified. The 
chairman shall appoint three or 
more voting members to the otlicr 
standing committees. The 
cliairman shall select the 
chairman of each standing 
committee and fix its duties 
unless otherv-;ise fixed by 
resolution or adoption of motion 
by the voting members. 

.0115 OTHER COMMITTEES 
The chairman shall appoint 
tliree or more voting members to 
such other committees as may be 
created by motion and adopted by 
the voting members. Tlio 
chairman shall select a chairman 
of such other committee and 
shall fix its duties unless its 
duties are otherwise fixed by 
resolution or adoption of motion 
of the voting members. 

.0115 RECORDS 

Every committee shall keep 
a written record of its 
proceedings and shall submit 
such record to the voting 
mombersliip at each regular 
meeting and at such other times 
as may be requested by the 
voting members. 

.0117 ACTION BY EXECUTIVE 
COMMITTEE 

Between meetings, the Executive 
Committee shall have authority 
to act on behalf of the Roaiio3cc 
Voyages and Elizabeth II 
Commission in considering and 
acting on applications submitted 
to the commission. 

SECTION .0200 - GENERAL 
DEFINITIONS 

.0201 ADVERTISING OR 



ADVERTISEMENT 
Moans any writing, printing, 
picture, painting, emblem, 
drawing, sign, flag or similar 
device which is posted or 
displayed outdoors on real 
property and is intended to 
invite or to draw the attention 
or to solicit the patronage or 
support of the public to any 
goods, merchandise, property, 
real or personal, business, 
services, entertainment or 
amusement manufactured, 

produced, bought, sold, 
conducted, furnished or dealt in 
by any person or for any 
political party or for the 
candidacy of any individual for 
any nomination of office; the 
term(s) sliall include any part 
of an advertisement recognizable 
as such. 

.0202 ADVERTISING STRUCTURE 
Means any rigid, semi-rigid or 
portable material with or 
without any advertising 
displayed thereon, situated upon 
or attached to real property 
outdoors, primarily or 
principally for the purpose of 
furnishing a background or base 
or support upon v;hich an 
advertisement may be posted or 
displayed . 

.0203 COMMISSION 
Means tlie Roanoke Voyages 
and Elizabeth II Commission. 

.0204 CORRIDOR 

Rigiit of way of U.S. Highway 
64-264 and all lands within 660 
feet back from and parallel to 
tlie right of way. For the 
purpose of these Regulations, 
the Corridor shall apply to the 
right of way of U.S. Highway 
64-264 and all lands within 660 
feet back from and parallel to 
the right of way for signs; to 
the right of way and all lands 
within 50 feet back from and 
parallel to the right of way for 
cutting of trees and regulating 
utilities and to the right of 
way for landscaping. 

.0205 HIGHWAY 

U.S. Highway 64 and 264 on 
Roanoke Island between the 
William B. Umstead Memorial 
Bridge over Croatan Sound and 
the Washington Baum Bridge over 
Roanolcc Sound. 

.0206 OFF PREMISE 

Means away from the property 
or tract of land forming the 
subject of a conveyance or the 
houjc or building with the 
grounds and boundaries belonging 
to the tract. 



NORTH CAROLINA REGISTER 



263 



.0207 SIGN 

Means any outdoor display, 
device, figure, painting, 
drav;ing, message, placard, 
poster, billboard, flag or any 
other thing which is designed, 
intended or used to advertise or 
inform; any part of tlic 
advertising or informative 
contents . 

.0208 UTILITIES 

Utility facilities and/or 
utilities means and includes all 
privately, publicly or 
cooperatively ov.'ned lines, 
facilities and systems 
transmitting or distributing 
communications power, 

electricity, not connected witli 
highv;ay drainage. and other 
similar commodities directly or 
indirectly serving the public or 
any part thereof. 

.0209 WORKING DAY 

Means any one 24 hour period 
from midnight to midnight on 
Mondays through Fridays 
exclusive of recognized national 
and state liolidays. 



SECTION .030 



REGULATIONS 



.0301 OUTDOOR ADVERTISING 
Regulations for off-premise 
location of billboard, outdoor 
advertising structures and 
displays which are located 
within 660 feet of the right of 
way of U.S. Highway 64-264 on 
Roanoke Island: 
( 1 ) No off-premise 

advertisement. advertising, 
advertising structure or sign 
shall bo erected, 
constructed, installed, 
maintained or operated in the 
Corridor without first 
obtainir.g a Certificate of 
Appropriateness . 
(2) Staridards for Outdoor 
Advertising 

(a) In zoned and unzoned 
residential districts the 
minimum distance from the 
right of v;ay shall be 560 
feet unless othcrv;ise 
specified or prohibited by 
local ordinance. 

(b) In zoned and unzoned 
commercial districts the 
minimum distance from the 
riglit of way shall be 50 
feet unless otlicrwise 
specified or proliibited by 
local ordinance. 

(c) The sign display board 
sliall measure no larger than 
local ordinances allow. 

(d) Tiie top of the sign sliall 
be no liighcr than 14 feet 
above existing grade, except 



where other ordinances 
apply. 
(e) Uo trees, shrubs or other 
vegetation within 50 feet of 
the right of v;ay c.in be 
removed to accommodate 
outdoor advertising witliout 
a Certificate of 
Appropriateness . 

(3) A.ny outdoor advertising 
erected, altered or 
established after the 
effective date of these 
Regulations shall be unlaivful 
and constitute a nuisance 
unless a Certificate of 
Appropriateness is obtained. 
The commission shall give 30 
days notice by registered 
mail to the ov;ner of the 
non-conforming advertising 
and/or structure if such 
owner by reasonable diligence 
can be ascertained, to move 
the advertising, structure or 
sign. Tlie commission or its 
agent shall linve the right to 
remove or to contract to have 
removed the non-conforming 
advertisement, structure or 
sign at the e::pense of the 
said ovjner if the said owner 
fails to act v;ithin 30 days 
after the signed receipt of 
such notice. The commission 
or its agent or contractor 
may enter upon pr-ivate 
pi'operty for the purpose of 
removing the advertising, 
structures and/or signs 
prohibited by these 
Regulations vjithout civil or 
criminal liability. 

(4) Highvjay signs located 
within the Corridor are 
exempt from these Regulations 
inasmuch as ir '^intcnance of 
standard colors, sliapes, 
sizes and location are 
necessary for highvjay safety. 
The backs and structures on 
all high'.jay signs v;ill 
conform to the color 
described as Roanoke Island 
Brov.'n . 

.0302 LANDSCAPING 

Regulations for the landscaping 
of the U.S. Higliway 64-264 riglit 
of way within the Corridor: 

CI) Landscaping, seeding. 

earthmoving. planting, 
topsoiling and pruning v;ithin 
the right of way shall be 
prohibited without a plan 
approved by the commission 
and a Certificate of 
Appropriateness issued by the 
comr ission . 

(2) Maintenance and planting 
v;hen approved by the 
commission shall be in 
accordance with Guidelines 
for Planting Within Higliway 



264 



NORTH CAROLINA RHGISTLR 



Right of Ways published by 
the North Carolina Department 
of Transportation, prepared 
by the Landscape Unit, 
Division of Highways, P. 0. 
Box 25201, Raleigh, Nortli 
Carolina 27611, telephone 
(910) 7o3-29-.0. 

.0303 CUTTING OF TREES 
AND SHRUBS 
Regulations for cutting and/or 
I'smoval of trees from the 
highway right of way and within 
50 feet adjacent to the right of 
way of the Corridor: 

(1) No trees or shrubs shall 
be cut or removed from the 
Corridor right of way without 
a Certificate of 
Appropriateness issued to the 
land owner (on whose land the 
tress are located) by the 
commission . 

(2) Clear cutting of the 
Corridor right of way and the 
vegetation within 50 feet of 
the highway right of way is 
prohibited . 

(3) A Certificate of 
Appropriateness for the 
removal of trees shall be 
permitted when it is 
determined by the commission 
that such removal does not 
result in an adverse impact 
or dctx'imcnt to the Corridor. 
Where minimum vegetation 
along the Corridor exists due 
to removal of trees and 
shrul^s by natural causes, 
unauthorized clearing or 
accidental causes and the 
commission finds that the 
visual integrity of the 
Corridor is interrupted, 

planting within tlie 

50 feet area adjacent to the 
light of way for the purpose 
of enhancing the appearance 
and aesthetic quality of the 
Corridor may be required by 
tiie commission. 

.030'^ DRIVEVJAYS AND 
CURB CUTS 
Regulations for the 
ii'.stallat ion of drivevjays and 
curb cuts througii the Nortli 
Carolina Department of 
Transportation right of way of 
U.S. 64-264 on Roanoke Island: 

( 1 ) No driveway permit shall 
be issued by the North 
Carolina Department of 
Transportation until a 
Certificate of 
Appropriateness has been 
issued by the commission. 

(2) Any individual, 
individuals or group wishing 
to cut through tlie Corridor 
for a driveway or curb must 
obtain a Certificate of 



Appropriateness as outlined 
in Section .0400. 

(a) Driveway cuts made 
without obtaining a 
Certificate of 
Appropriateness shall be 
unlavjful and constitute a 
nuisance. The commission 
shall give 30 days notice by 
registered mail to the owner 
of the property of a 
violation of these 
Regulations . 

(b) Parcels of land adjacent 
to the Corridor right of way 
under one ownership shall be 
entitled to no more than two 
curb cuts and may be limited 
to one curb cut or driveway 
at the discretion of the 
commission, depending on the 
size and scope of the 
development to be served. 
If more than one use is to 
be located on said parcel, 
the number of curb cuts or 
driveways into the parcel 
shall still not exceed two 
and a feeder (frontage) road 
behind the Corridor may be 
permitted in order to limit 
the disturbance of the 
Corridor. The commission, 
by a majority vote, may 
waive this requirement if it 
is determined that better 
traffic operation and safety 
will result without 
compromising the visual 
integrity of the historic 
Corridor . 

(c) Curb cuts and driveways 
shall be no wider than 35 
feet at tlie apron adjacent 
to the highv;ay pavement and 
24 feet for the remainder of 
the driveway. 

(d) Tracts subdivided after 
the effective date of these 
Regulations will be 
considered as one parcel. 

(e) All driveways and curb 
cuts shall be designated to 
distrub the minimum number 
of plantings within the 
Corridor . 

.0305 UTILITY REGULATIONS 
(a) Location 
(1) New utility installations 
on the Corridor shall be 
placed underground. New 
utility installations means 
initial installations and 
the replacement of existing 
facilities with those of a 
different type. capacity, 
size of wire or design or 
replacement at a new 
location on the Corridor. 
Any replacement of an 
existing facility or portion 
thereof with another of the 
same type, size of wire. 



NORTH CAROLINA REGISTER 



265 



capacity and design at the 
sane location is considered 
to be maintenance . 

(2) Pedestals, transf orncrs , 
manholes, vaults or otiicr 
above groujid or at grade 
utility appurtenances 
installed as part of buried 
plant shall be located at or 
near the outer extremity of 
Corridor jurisdiction. 
Justification for otiior 
locations may be approved by 
the commission and 
Department of 
Transportation . 

(3) Loiigitudinal 
installations shall be 
located on uniform alignment 
as determined satisfactory 
by tiio commission and 
Department of Transportation 
so as to provide a safe 
environment for traffic 
operation and to preserve 
adequate space for planned 
highway improvements or 
other utility installations. 
Longitudinal installations 
under the pavement , 
including paved shoulders, 
will not be permitted. 

(4) To the extent feasible 
and practicable, utility 
line crossings of the 
highway sliould cross on a 
line generally perpendicular 
to the highv;ay alignment. 

(b) Pavement Cuts 

( 1 ) Longitudinal pavement 
cuts along U.S. 64-264 will 
not be permitted without 
obtaining a Certificate of 
Appropriateness . 

(2) Generally, pavement cuts 
across U.S. 54-264 will not 
be permitted; however, there 
may be extreme cases where 
the commission and the 
Department of Transportation 
may allow open cuts where 
justified. A Certificate of 
Appropriateness must be 
obtained for open cuts. 

(c) Cased and Uncased 
Construction 

(1) Underground crossings of 
U.S. 54-264 may be installed 
v;ithout protective pipe, 
conduit or duct provided 
such installations are 
limited to open-cut 
construction or to small 
bores for wire or cable 
facilities vjhei'e soil 
conditions permit 

installation by boring a 
hole about tlie same diameter 
as the cable and pulling the 
cable tliroiK^h. On cros.sing 
wlicre open-cut is nob 
allowed, installations that 
require bores in e.xccss of 
six inclics shall be encased 



unless the utility 
demonstrates to the 
satisfaction of tlie 
commission and Department of 
Tra!isportat ion tliat the 
installation .method for an 
uncased crossing is such 
tiiat tlie bored hole is never 
left unsupported. 

(d) Bury. Tlie minimum depth 
of bury for utility lines shall 
be as follows : 

(1) Crossings under all 

roadways (including 

shoulders ) . . . 5 ' 
C2) Crossings under ditches 

(paved and unpaved) r.nd 

sidewalks . . 2 ' 

(3) Longitudinal electric 
power primary 3' 

(4) Longitudinal electric 
power secondary, and 
trenclicd communication lines 
. . .2' 

(5) Plowed-in utility 
lines IS" 

(e) Safety \','arning Devices. 
The utility ovmor shall provide 
during construction any 
E'llisequent maintenance, proper 
signs, signal lights, flagmen 
and other v.'arning devices for 
tlic protection of traffic in 
conformance with the latest 
Manual of Uniform Traffic 
Cojitrol Devices for Streets and 
Highv.-ays, and the '.'or^h Carolina 
Construction and Maintenance 
Operations Supplement. 
Information as to this Rule may 
be obtained from the Department 
of Transportation's Maintenance 
Office in Manteo, North 
Carolina. The Department of 
Transportation has tlie right to 
stop any work for 
non-compl iance . 

(f) Removal or Alteration 
of Vegetation. 

( 1 ) The encroaching party or 
their agents shall exercise 
every required precaution 
during construction and/or 
maintenance to prevent 
eroding of soil; silting or 
pollution of v.'atcr 
impou;idmcnts , ground 

sui'faces or other property; 
or pollution of the air. 
There shall be compliance 
v/itli applicable rules and 
I'cgulations of the North 
Carolina Division of 
Environmental Management, 
North Carolina Sedimentation 
Control Commission and v/ith 
ordinances and regulations 
of Dare County, the Town of 
Manteo, the State of North 
(.'.iroljna and other offiri.il 
regulating agoac i<-s i-cl.iting 
to sedimentation and 
pollution prevention and 
control . 



266 



NORTH CAROLINA REGISTER 



(2) Where there is excavation 
for underground 

installations or wlicn any 
otlicr installat io;i or 
maintenance operation:; 
disturb the ground surface 
and the existing ground 
cover, the c icroaching party 
shall be required to perform 
erosion control measures as 
follows : 

(A) Erosion control shall 
be performed in accordance 
witji the requirements 
contained in the current 
edition of the Department 
of Transportation's 
Standard Specifications 
for Roads and Structures. 

(B) Tl\e use of temporary 
erosion control measures 
shall be iiicludcd to 
prevent siltation of 
waterways and adjacent 
property. The use of silt 
basins, silt check dams, 
silt fence, temporary 
slope drains, brush 
barriers and temporary 
seeding and mulching shall 
be used as needed. 

(C) Permanent erosion 
control shall be performed 
as follows: 

(i) All disturbed areas 
shall be dressed to 
original typical 

sections and plov;cd to a 
depth of five inclics . 
The top tv.'o inches shall 
be pulverized to provide 
a uniform seedbed. Lime 
shall be applied before 
plovjing . 

(ii) Kinds and rates of 
seed, fertilizer and 
li.Tiestone sliall be 
specified by the 
commission or Department 
of Transportation. 

(iii) Lime, seed and 

fertilizer shall be 
applied with necessary 
equipment to give 
uniform distribution of 
these materials. The 
hand-bucket method is 
not acceptable. 

(iv) Seeded area shall 
be cultipac]:ed to firm 
seedbed and seed sliall 
bo adequately covered. 

(v) Grain straw shall be 
applied over seeded 
areas as a mulch. K'o 
bare ground sliall be 
visible when riding by a 
miilchcd area if proper 
application is achieved. 
Thiclc cluKips of straw 
are not permissible; a 
uniform coverage is 
required . 

(vi) Mulched areas shall 



be tacked sufficient to 
hold straw in place. 

(3) No trees may be cut or 
removed without prior 
approval, and in certain 
situations, the commission 
or Department of 
Transporation may require 
that trees or shrubs be 
carefully dug and replanted 
or replaced by new plants. 

(4) When permission for 
cutting, trimming, digging 
or other removal or 
alteration of trees, shrubs 
or other vegetation on the 
Corridor for the purposes of 
construction and maintenance 
by an encroaching party is 
given it shall be subject to 
the following standard 
requirements : 

(A) The permission applies 
only to the interest of 
the commission and 
Department of 
Transportation in the 
vegetation and is not to 
be construed as freeing 
the encroaching party from 
liability to the adjacent 
property owner. Special 
attention is called to 
this provision in cases of 
specimen trees that are 
also a part of private 
development such as home 
grounds, schools, 
churclies, etc . 

(B) All cutting shall be 
done as close to flush 
with the ground as is 
practicable with modern 
saw equipment . Under very 
exceptional conditions, 
such as very large 
diameter trees or swamp 
grovjth, flush cuts maj' not 
be practical. The 
burden of proof for the 
necessity of high stumps 
will rest with the 
encroaching party and 
express approval must be 
obtained from the 
commission prior to such 
cutting . 

(C) Trimming of specimen 
trees on the Corridor 
shall be done in 
accordance with generally 
accepted tree surgery 
practice and any trimming 
necessary to leave the 
tree with a good, balanced 
api^earance must be done in 
addition to the minimum 
trimming needed for line 
clearance, climbing irons 
or spurs must not be used 
on any ti-ee . 

(D) All cuttings shall be 
removed from the Corridor 
and out of view unless 



NORTH CAROLINA REGISTER 



267 



otherwise stated in the 
Certificate of 

Appropriateness. If 
v;oodchippinj machines arc 
used for brush disposal, 
the chips must be removed 
from the Corridor. 

(E) Removal or alteration 
of vegetation for existing 
overhead utility 
facilities generally will 
be limited to 15 feet; 
that is, to seven and a 
half feet on either side 
of the utility v;iro or 
pole. Wider clearing 
areas will be considered 
only on the basis of (1) 
removing only danger 
trees, (2) retaining 
large, sound, 
strong-trunked trees, and 
C3) trimming such large 
sound trees for wire 
clearance only instead of 
complete side trimming. 
No flat-topping, 
bench-topping or 
clear-cutting will be 
allovjed and all trimming 
will be accomplished by 
irregular hand pruning. 

(F) Under some 
circumstances the granting 
of permission related to 
existing overhead utility 
facilities will be 
conditioned upon tlic 
preservation of such 
shrubs and low-grov;ing 
trees within the clearing 
area . The need and extent 
of such preservation v;ill 
be determined for specific 
locat ions . 

(G) Ivhen excavating for 
underground utility 
installation or 
maintenance i'- done near 
trees, the minimum, but 
necessary, cutting of tree 
roots sliall be done in 
accordance v.'ith generally 
accepted tree surgery 
practice. The tunneling 
under and retention of 
principal support roots 
may be required when 
considered necessary, 
according tc the location, 
size and quality of the 
tree involved . 

(H) The use of herbicides 
for control of vegetation 
is prohibited, 
(g) Procedures of Processing 
Utility Encroachment Agreements. 
(1) All requests shall be 

submitted directly to the 
Commission, P.O. Bo.x 155, 
Mantoo, North Carolina 
27954, for review, 
consideration and 

processing. Those requests 



affecting the North Carolina 
Department of Transportation 
right of v;ay or the right of 
viay and the 50 feet outside 
of t)ie riglit of way require 
the approval of both the 
commission and the 
Department of Transportation 
Division Engineer. Those 
requests affecting only the 
50 feet outside tlie right of 
way require the approval of 
the commission only. 
(2) General requirements for 
permit application are the 
same as found under Section 
.0400 of the general 
regulations for the 
commission . 

SECTION .0400 - CERTIFICATION 
OF APPROPRIATENESS: 
PROCEDURAL REQUIREMENTS 

.0401 APPLICATION 

Anyone seeking to talce any 
action wiihin tlie jurisdiction 
of the Corridor, including but 
not limited to removing or 
moving trees or shrubs, 
installing or maintaining 
utilities, or installing a 
driveway or curb cut or erecting 
outdoor advertising, v;ill first 
obtain a Certificate of 
Appropriateness from the 
commission. Tlie proposed action 
must comply with tlic regulations 
outlined heroin. Any 

individual, individuals or group 
seeking such certificate will 
submit five copies of the 
proposed sketch plan or letter 
to the commission for review. 
Tlie sl'.etch plan and/or letter 
sliowing tlie proposed action 
v;ithin the Corridor must contain 
the follovjing information: 

( 1 ) A sketch map of the 
vicinity of the proposed 
action showing its location 
in relation to neighboring 
tracts, plantings within the 
Corridor, e.xisting signs, 
roads and watervjays. 

(2) The boundaries and total 
acreage of the tract v.here 
the proposed action is to 
take place . 

(3) The name, address and 
telcplione number of the owner 
of the tract where the 
proposed action is to take 
place . 

(4) E.-'iisting vegetation on 
the right of way and on land 
vjithin 50 feet of the right 
of way. 

(5) Ar inventory of the trees 
to be removed. 

(6) A narrative explaining 
tlie reasoning behind the 
proposed removal . 

(7) An inventory of plants. 



Z68 



NORTH CAROLINA REGISTER 



their sizes and quantities 
proposed to rolace tliose 
removed and/or complement 
those remaining. 

(8) Designation of the person 
/persons who will be 
x-csponsible for removal 
and/or insiallation of the 
trees . 

(9) An estimate of tlie cost of 
the removal and installation 
proposed . 

(10) A sketch plan sliowing the 
location of all existing and 
proposed driveway cuts and 
the vegetation affected 
thereby . 

(11) An erosion and 
sedimentation control plan as 
required by 6.S. 113A-67 



rhall be 
appl icable 
application . 
The commission, 



filed 
with 



wlicre 
the 



upon written 



request, nay waive any of the 
above information determined to 
be extraneous to tlie review 
process for tlie specific 
request . 

.0402 COMMISION REVIEW 
OF APPLICATION 

Upon receipt of a complete 
apiolication and plan, the 
commission or Executive 
Committee shall either approve 
or deny the request within 20 
working days after submission. 
During the review period, the 
commission shall check the the 
site for ownership, accuracy of 
submission and tlie compatibility 
of the proposed plan with the 
overall concept of th.e Corridor. 
Action by the Executive 
Committee can be delayed until 
the next scheduled commission 
iT.ceting if in the E.xocutive 
Committee's discretion an 
application should be considered 
by the commission. 

.CiOS ISSUANCE OF CERTIFICATE 

Upon issuance of the 
Certificate of Appropriateness, 
the commission shall assure that 
tlie certificate is posted on the 
site at all times; that the 
proposed thinning, removal, 
pruning, planting and 
maintenance is performed in 
compliance with the approved 
plan; that the responsible party 
is informed immediately in 
VJritiny should the plan or 
intent of the permit not bo 
followed . 

.0404 BOND 

Should the projected cost of 
the proposed work viithin the 
Corridor jurisdiction be greater 
than four hundred and ninety 
nine dollars ($499.00), the 



commission shall h 
of requiring an 
cash bond or bank 
insure that the 
will be performed 
Said insurance, 
bank certificate 
amount set by the 
to be held until r 
commiss ion . 



ave the option 

insurance or 

certificate to 

proposed work 

as permitted, 
cash bond or 

to be in an 
commission and 
elcased by the 



.0405 REPLACEMENT OF 
DESTROYED TREES 

If the certificate holder 
destroys or damages vegetation 
for any reason that is not 
planned for removal, the 
certificate holder shall be 
liable for the replacement of 
said vegetation as close as 
possible to its orginal size and 
location . 



SECTION .0500 



ENFORCEMENT 



.0501 AUTHORITY 

The commission shall have all 
necessary authority to 
administer and enforce these 
Regulations including the 
ordering in writing of the 
remedying of any condition found 
in violation of these 
Regulations, and bringing legal 
action to ensure compliance, 
including the injunction, 
abatement or other appropriate 
action or proceeding. 

.0502 NOTICE OF VIOLATION 
If any of the provisions of 
these Regulations are being 
violated, notification shall be 
made in v/riting to the person 
responsible for such violations, 
indicating the nature of the 
violation and ordering the 
action necessary to correct it. 
The commission shall order a 
discontinuance of illegal site 
vjork being done; or shall take 
any other action authorized by 
those Regulations to ensure 
compliance with or to prevent 
violation of its provisions. 

.0503 LEGAL ACTION 

The commission may institute a 
civil action against the 
offender seeking enforcement by 
appropriate equitable remedy, 
injunction and order of 
abatement . 



SECTION .0600 



APPEALS 



.0601 APPEAL TO FULL 

COMMISSION 
Any individual, individuals or 
group may appeal a decision 
denying a Certificate of 
Appropriateness rendered by the 
Executive Committee to the full 
commission . 



NORTH CAROLINA REGISTER 



269 



.0602 APPEAL PROCEDURE 
The appealing party shall 
submit 20 copies of the 
application to the commission 
chairman at least 15 days prior 
to the scheduled commission 
meeting . 

.0603 COMMISSION ACTION 
The commission sliall consider 
an appeal at its meeting and 
take the following action: 
( 1 ) grant the Certificate 
of Appropriateness; 

(2) deny the Certificate 
of Appropriateness; 

(3) grant a variance; or 

(4) table the matter for one 
meeting in order to seek 
further information. 

.0604 FINAL AGENCY 
DECISION 

Once the commission has 
considered an appeal and 
rendered a decision, said 
decision shall be considered a 
final agency decision. 



TJie proposed effective date of 
this action is December 1, 1986. 



TITLE 10 



HUMAN RESOURCES 



Notice is hereby given in 
accordance with G.S. 150B-12 
that the DHR Division of 
Facility Services intends to 
adopt, amend, repeal regulations 
cited as 10 NCAC 3R .0304-. 0307; 
.1602; .1604-. 1609; .1613-. 1618; 
.1702; .1704-. 1709; .1713- 
.1719; and .2404. The purpose 
of the proposed regulations i 
Amend .0304 through .0307 
Rules dealing v;itli the filing of 
certificate of need applications 
including fees for filing, 
amendments to applications, and 
review categories and schedule; 
Repeal .1602 and .1604 througli 
.1609 - Special rules for 
certificate of need reviev; for 
cardiac catheterization 

services; Adopt .1613 through 
.1618 - New special rules for 
certificate of need review for 
cardiac catheterization 

services; Repeal .1702 and .1704 
through .1709 - Special rules 
for certificate of need review 
for open heart surgery services; 
Adopt .1713 through .1719 - New 
special rules for certificate of 
need review for open heart 
surgery services; Amend .2404 
Rule governs capacity in the 
facility and in tlie health 
service area during certificate 
of need review for bods for 
intermediate care for the 
mentally retarded. Proposed 
change makes model in Rule (d) 
(2) clearer. 



Statutory Authority: 
131E-177 and 131E-182. 



G.S. 



The public hearing will be 
conducted at 10:00 a.m. on 
September 22, 1986 at Hearing 
Room, Room 201, Division of 
Facility Services, 701 Barbour 
Drive, Raleigli, N.C. 

Comment Procedures: Written 
comments should bo sent to Mr. 



I . . Wilkerson , 



Jr . , Director, 



Division of Facility Services, 
701 Barbour Drive, Raleigh. N.C. 
27603. Tliese commeiits vjill be 
received from the date of 
publication until September 19, 
1986. 



SUBCHAPTER 3R 



CERTIFICATE OF 
NEED REGULATIONS 



SECTION .0300 - FUNCTIONS OF A 
HEALTH SYSTEMS 
AGENCY 

.0304 APPLICATIONS 

(a) After compliance with 
Rule .0303 of this Section, the 
agency shall determine which 
application fdrm or forms are 
appropriate and provide the 
applicant witli such form or 
forms . 

(b) The application forms are: 
( 1 ) The End Stage Renal 

Dialysis application form; 

(2) the long-term care 
application form; 

(3) tlie acute care facilities 
application form; arrd 

(4) tlie abridged application 
form ; and 

(5) any other application 



form developed by 



the 



agency . 

(c) Copies of the forms may be 
inspected in tlie Certificate of 
Need Section, Division of 
Facility Services, North 
Carolina Department of Human 
Resources, 1 33 S-t-r H ary ' s 
St r e e t . Po-str 0-f -hirers Btrx +-22-0-e-r 
701 Barbour Dri ve, Raleigh, 
North Carolina . 27603. 

(d) Applications must be 
submitted to the Aacncv, and 
stamped as received by the 
A gency no later tlian 5:00 PM o n 
th e la.'st uorki nq day before the 

f_i f t_e^ n days I'oqiiire d in Rule 

.03 05( 1 ) of t h i s Sect ion. 

( c ) Respo nse s to in complete 

ni' e_s tJ! "-'1'5 fo r appl ica tion s 

su bnil t cri under F.ule .0305 of 
t his Section mist be submitted 

t o the Age ncy. a nd stamped as 

receive d by t h e Arrencv no later 
than 5:00 PM on the last working 



270 



NORTH CAROLINA REGISTER 



day before tho first day of the 
royjcw schedule . 

.0305 FILING APPLICATIONS 

(a) An application will not be 
revievjcd by the agency until it 
is filed in accordance with the 
Rule. 

(b) An original and a copy of 
the application shall be 
dcliyered to the agency. The 
a yu ncy glial 1 p ro mp b l -y 
grrj ;n o trlcd ge rxr ccip t erf -thxr 
app li cat i o n . For each 
application submitted for any 
rcyiew batch which starts on or 
after the offoctiye date of this 
Rule, the applicant shall 
transmit, with the application, 
a fee to be determined according 
to the following formula: 

(1) V/ith each application 
proposing no capital 
expenditure, the proponent 
shall transmit a fee in the 
amount of four hundred 
dollars ($400.00). 

(2) With eacli application 
proposing a capital 
expenditure of up to, but 
not including, five hundred 
thousand dollars (0500,000), 
tho proponent sjiall transmit 
a fee in tho amount of fiyc 
hundred dollars ($500.00). 

(3) With eacli application 
proposing a capital 
expenditure of five hundred 
thousand dollars ($500,000) 
or greater, the proponent 
shall transmit a fee in the 
amount of five hundred 
dollars ($500.00), plus an 
additional fee equal to 

■ 1 5 of the amount of the 
proposed capital expenditure 
in cxcesr, of five hundred 
thousand dollars ($500,000). 
The additional fee shall be 
rounded to the nearest wliole 
dollar. In no case shall 

the total fee exceed fifteen 
thousand dollars ($15,000). 
■(-2^ TiTC -crgT^rnxry v; ill notif y 
cTppi-i-cTtrrt-s- ^tiio ■s-ctbr.ri-t 

triJiriric a t i ortt; v/i t h o u t tire 
appr o priat -T:? fee . flf rt ftrc 
cciiTtrl: to xrr g r e a te r t^TTriT t-lre 
appropr iati:? xcc n^rs not been 
r e I" 1 b t c d v/itli in t crn days trf 
r ec e i p t erf sucli not i ce , "bht; 
app iic at i uTT v ;ill bt; 

cons idcrcd uicomplctc , and 
iTO rcx ' i e v; erf trht; appl i c a t ion 
shall- b ee ; in , nor- will a 
ccyb- i f ica tc of need for tte; 
prxrjcrct- be is.3ucd . An 

«-Vppl j-Crrrt must pay in xul 1: 
any otrtrstraiKH.Ttg f^cc bala nce 
tltre the agen c y prror txr cny 
■sttbscquerrt app l ic; i l ion beirrg 
dctcrr.iiTtcrf c-o mpl c t c by the 



(3 ) For any ap p lica t i o n which 

was s ubn i i ttc d b e f or e tlic 

of f cct^rr^ da te o^ t+ri-s Ruter 

birt vrfrich was in c lud e d -in a 

Tcvtcfj b e g innin g d ul y -h- 

+903 or lat e r, -fche p r o p o nen t 

na m ed -in the application 

sl ial-1: be charged a -fee -in 

accordanc e vii t h "Hrirs 

Paya grnph . Jrf -H-te p r op on e n t 

has alTC-atly pai d a liiglier 

■fee based on tire t e m p o rary 

i-trire -in e ff e ct fr o m July •1-5-r 

^-903 to November +Q-r 190 3 , 

tire ag e ncy v;ill re fund 

pr opo n e nt tlie am o un t paid -im 

e xcess of ttte t otal fee ttert 

wo uld be o wed und er tl ' iis 

Paragraph . 

(c) After an application is 

filed, the agency shall examine 

-i-fc t-o determine -i-f vjhether it is 

complete for revievf. H -i-t -irs 

c o mplete - , -rt v ;ill be re vi e wed 

under tlie applicable review 

:;chcdulc r -irf any-r The a ge n c y 

and tbe applicabl e h e alth 

sys be ina ag e nc y will no t review 

an a pplica t ion until -irb -is 

co mple te . An application shall 

be complete unless: 

(,^ ) tho rocTuisite fee has not 



been 


received by 


the 


agency; 


or 
(2) a 


signed 


orig 


inal 


and 


copy 
not 


of the npplicat 
been submitted 


ion have 
to the 


agency on 


the 


appropriate 



application form. 
•fxH- An application -irs 
in co mple t e if: 

-(-H- -i-t d oe s not provid e aii 
t+re informa t i on reque :: »i e d, 
or d o c s not- provide -rb -in 
the required -form and 

-(-2-)- an or iginal and copy of 
the appl ic at ion were riot 
subm it ted te tlie agency i 
■frcr}- t^ie a p p ro p riate forms 

V7 c r e not used . or 
( 4 ) titc original vjas no t 
s igned . 
(d) If tho agency determines 
tlio application is not complete 
for review, it shall mail notice 
of such determination to the 
ap plicant within five business 
da ys after t h o application is 
filed and shall specify what is 



necessary to complete 



the 



a ppl icat ion . 



If the 



agency 



determines the application is 
complete, it shall mail notice 
of such determination to the 
applicant within 15 days after 
the application is filed. 

(c ) if an applicati o n -is 
i n co m p l ete , -the ag e ncy, v;i t hin 
-^5 day^s after an applica t i o n -irs 
fi.-ied-r shall mail not ice to tlie 
appl icanx xjiax Trt ts incoinpj.ete . 
Tlie n ot i ce Si iall sp e c ify what -rs 
necessary t-o complete the 



NORTH CAROLINA REGISTER 



271 



applican t htrs 

-I T- 1 ,1 t f 1 1 , 

p rovide "Htc 

■i nforma t i o n . -i-f tire 

tioes no't respond vn 

t im e , "the ap p li c a t i o n 
d e emed 



applica t ion . i-f arr appli cat i o n 
■irs in c ompl ete b e caus e tire 

ap p r op riate f o rms v. 'cr e ntrb us e d, 
the agency will rrert re view ftrr 

snbm- i tt c d-r btrt will p rovide t+rc 
applic j n-t: with -th-e appropr i a-fc-c 
forms-r Af t e r r-jccipt o-f tire 

appr op r ia t e forms , th e nrrentry 
will review tircTTt ftxr 

completeness . 

(e) In oi'der for the agency 
and applicable health systom.s 
agency to commence reviev;, tlie 
application must be doomed 
complete prior to the .qtrirt of 
the application rcvicv; period 
for vjhich it v;as submitted. 

■(-f-)- AftrcT t+rc arfcrrcy m ails a 
no t i c e o-f inc o mpl et eness , the 

mo n b l ' is firom 

ne c e s sa ry 
a pp l icairb 
liin strch 
sliall be 
tf -the- 

ap pli c an t d oes respond . btrfc d ocs 
rro-t pr o' vride al l t-irc req tri-r-gd 
inf o rmation , tite agenc y sliall 
mail arrert h e r n o tice of 

in c o mp l et ene s s v;i th i n -h5 days o-f 
the rec c ip b of t lio ad-dirb ional 
in f or ma t ion . 

■(-g-> Tht; datre an appli c a t i o n 
■i-s c omple t e irs •bh^ tkjy tl ' i e 
ag e ncy de t ermines -irt -xrs 

comple te . 

-Hr)- ( f ) An application will 
not be included in a scheduled 
reviev; under Rule .0307 of this 
Section, unless it is delivered 
to the agency more than 15 days 
before the first day of the 
review schedule. 

.0306 AMENDMENTS TO 
APPLICATIONS 

( a ) An appl xcant' may amend art 
i n co mpl ete application irt 
writing . H an appli ca ti o n -i-s 
amended, t^re agency tv ill review 
irt fo r co m p l e teness ami may send 
otrt a not ice of incompleteness 
for iHrc reasons so"b f ortli irr 
Rule ■ 030 :5 of tliis S e c t ion . 

-Hr> An applicant may not amend 
a c o mplc rt-e an application. 
Responding to a request for 
additional information made by 
the agency or the health systems 
agency after the reviev; has 
commenced is not an amendment . 

.0307 REVIEW CATEGORIES AND 
SCHEDULE 

(a) The Agency will determine 
the appropriate review category 
or categories for all 
applications submitted. For 
proposals which include more 
than one of the categories, the 
Agency, if practical, will 
require the applicant to submit 



separate applications, the 
Agency will determine in which 
category the applications will 
bo reviewed. 

(b) The review of an 
application for a certificate of 
need under G.S. 131E-184, 
"Required Approvals," will 
commence in the next review 
schedule after tlie application 
lias been determined to be 
complete. The Agency will 
determine if the proposed 
activity may be eligible for a 
certificate of need under G.S. 
131E-184. 

(c) Except for those 
applications eligible for review 
under Rule .0307(b), all other 
Proposals will be reviewed under 
the schedule set forth in this 
Rule. The review categories are 
as f olloivs : 

(1) Category A includes 
proposals for acute health 
care facilitcs, including 
but not limited to the 
follov/ing types of projects: 
renovation, construction, 
major medical equipment and 
other ancillary and support 
equipment and services, 
except those proposals 
included in Category C and 
Category D. 

(2) Category B includes 
proposals for skilled 
nursing beds and 
intermediate care beds which 
are revicved against the 
State Medical Frcilities 
Plan. 

(3) Category C includes 
proposals for the following 
types of projects: 1) 
psychiatric facilities; 2) 
psychiatric services in 
existing health care 
facilities; 3) intermediate 
care facilities for the 
mentally retarded; 4) 
intermediate care services 
for the mentally retarded in 
existing health care 
facilities; 5) substance 
abuse and chemical 
dependency facilities; and 
6) substance abuse and 
chemical dependency services 
in existing health care 
facilities . 

(4) Category D includes 
proposals for the following 
types of projects: 1) 
inpatient rehabilitation 
facilities; 2) inpatient 
rehabilitation services in 
existing health care 
facilities; 3) 
comprehensive outpatient 
rehabilitation facilities; 
4 ) ambulatory surgical 
facilities; and 5) end 



272 



NORTH CAROLINA REGISTER 



stage renal disease 
treatment facilities. 
(5) Category E includes 

proposals for the following 
types of projects: 1) life 
care facilities; 2) home 
health agencies; 3) nursing 
homo propos.ls v;hich do not 
include health care beds; 
and 4) any other proposal 
not included in Categories A 
through D . 

(d) For health service area I. 
which is the area of Western 
North Carolina Health Systems 
Agency, the reviews v;ill 
commence as follows: 

(1) For Category A on March 

1 , July 1 and October 1 of 
each year; 

(2) For Category B on April 

1 , August 1 and November 1 
of each year; 

(3) For Category C on May 1, 
September 1 and December 1 
of each year; 

(4) For Category D on 
February 1 , June 1 and 
September 1 of each year; 
and 

(5) For Category E on June 

1 and December 1 of each 
year . 

(e) For health service area 

II, vjhich is the area of 
Piedmont Health Systems Agency, 
the revic'.-.'s will commence as 
follows : 

( 1 ) For Category A on May 1 , 
August 1 and December 1 of 
each year; 

(2) For Category B on April 

1 , July 1 and November 1 of 
each year; 

(3) For Category C on March 

1 , June 1 and October 1 of 
eacli year; 

(4) For Category D on 
February 1 , June 1 and 
September 1 of each year; 
and 

(5) For Category E on March 

1 and September 1 of eacli 
year . 

(f) For health service area 

III, VJhicli is the area of 
Southern Piedmont Health Systems 
Agency, the reviews will 
commence as follov;s: 

(1) For Catcgoi'y A on April 

1 , August 1 and November 1 
of each year; 

(2) For Category B on May 

1 , September 1 and December 
1 of each year; 

(3) For Catcgoi-y C on 
February 1 , June 1 and 
October 1 of eacli year; 

(4) For Category D on March 

1 , July 1 and October 1 of 
each year; and 

(5) For Category E on June 

1 and Decca.bcr 1 of each 
year . 



(g) For health service area 

IV, which is the area of Capital 
Health Systems Agency, the 
reviews will commence as 
follov;s : 

( 1 ) For Category A on 
February 1 , June 1 and 
October 1 of each year; 

(2) For Category B on March 

1 , August 1 and December 1 
of each year; 

(3) For Category C on April 

1 , July 1 and November 1 of 
each year; 

(4) For Category D on May 1, 
September 1 and December 1 
of each year; and 

(5) For Category E on May 1 
and November 1 of each year. 

(h) For health service area 

V, which is tlie area of Cardinal 
Health Agency, the reviews will 
commence as follows: 

(1) For Category A on March 

1 . July 1 and October 1 of 
each year; 

(2) For Category B on 
February 1 , June 1 and 
September 1 of each year; 

(3) For Category C on May 1, 
August 1 and November 1 of 
eacli year; 

(4) For Category D on April 

1 , August 1 and December 1 
of each year; and 

(5) For Category E on April 

1 and November 1 of each 
year . 
(i) For health service area 

VI, which is the area of Eastern 
Carolina Health Systems Agency, 
the reviews will commence as 
follows : 

( 1 ) For Category A on May 1 , 
September 1 and December 1 
of each year; 

(2) For Category B on 
February 1 , June 1 and 
No v em b er October 1 of each 
year ; 

(3) For Category C on March 

1 , July 1 and November 1 of 
each year; 

(4) For Category D on April 

1 , August 1 and November 1 
of each year; and 

(5) For Category E on April 1 
and October 1 of each year. 

(j) The Agency may designate 
specified review schedules for 
geographic sub-divisions within 
a category or categories to be 
applied during a calendar year. 
When the Agency designates a 
revievj schedule more specific 
than t]ie categories established 
by this Rule, the specified 
review schedule will be included 
in the applicable State Medical 
Facilities Plan. 

SECTION .1600 - SPECIAL RULES 
FOR CARDIAC CATHETERIZATION 
SERVICES 



NORTH CAROLINA REGISTER 



273 



.1602 DEFINITIONS (REPEALED) 

.1604 CAPACITY IN THE FACILITY 
AND IN THE HEALTH 
SERVICE AREA (REPEALED) 

.1605 SCOPE OF SERVICES 
OFFERED (REPEALED) 

.1606 PROJECTED UTILIZATION/ 
OCCUPANCY (REPEALED) 

.1607 PROJECTED PATIENT ORIGIN 
(REPEALED) 

.1608 SITE AND EQUIPMENT 
(REPEALED) 

.1609 STAFFING (REPEALED) 

.1613 DEFINITIONS 

The following definitions will 
apply to all rules in this 
Section : 

(1) "Capacity" of a cardiac 
catheterization roo.-n is 
considered to be 1200 
diagnostic -equivalent 
procedures per year. One 
PTCA procedure is valued at 
two diagnostic-equivalent 
procedures. One pediatric 
cardiac catheterization 
procedure is valued at tvio 
diagnostic- equivalent 
procedures. All other 
procedures are valued at one 
diagnostic -equivalent 
procedure . 

(2) "Cardiac catheterization" 
is a procedure performed in a 
cardiac catheterization room, 
whereby a flexible tube is 
inserted into the patient's 
body, usually through an 
extremity blood vessel, and 
advanced under fluoroscopic 
guidance into the heart 
chambers to perform a 
licmodynamic or angiographic 
examination of tlie left and 
right heart cliamber, or 
coronary arteries; 
therapeutic intervention in a 
coronary artery may also bo 
performed using cardiac 
catheterization. By this 
definition a cardiac 
catheterization procedure 
does not include a simple 
right heart catheterization 
for monitoring purposes as 
might be done in a 
electrophysiology laboratory, 
pulmonary angiography as nn 
isolated procedure. or 
cardiac pacing through a 
right electrode catheter. It 
does include angiographic 
procedures to evaluate the 
coronary arteries, and aortic 
root injections to examine 
the degree of aortic 



regurgitation or deformity of 
aortic valve. 

(3) "Cardiac cateterization 
procedure" means a single 
episode of catheterization 
which occurs during one visit 
to a cardiac catheterization 
room . 

(4) "Cardiac catheterization 
room" means a room in a 
hospital which has the 
equipment required to perform 
angiographic and physiologic 
cardiac catheterization 
procedures, and which has 
been approved by the 
Certificate of Need Section 
as a cardiac catheterization 
room . 

(5) "Comprehensive cardiac 
services program" moans a 
cardiac services program 
which provides the full range 
of clinical services 
associated with the treatment 
of cardiovascular disease 
including community outreach, 
emergency treatment of 
cardiovascular illnesses, 
non-invasive diagnostic 
imaging m.odalitios, 
diagnostic and interventional 
cardiac catlieterizat ion, open 
heart surgery and cardiac 
rehabilitation sei'vicos. 
Community outreach and 
cardiac rehabilitation 
services may be provided 
through arrangements with 
other agencies and facilities 
located in tlie same city. 
All other components of a 
comprehensive cardiac 
services program must be 
provided within a single 
facility . 

(6) "Diagnostic cardiac 
catlieterization procedure" 
means a cardiac 
catheterization procedure 
performed for the purpose of 
detecting and identifying 
defects in the great arteries 
of vein*: of the heart, or 
abnormalities in the heart 
structure . 

(7) "E.xpanded cardiac 
catheterization service" 
means the addition or 
conversion of a room to be 
dedicated to cardiac 
catheterization procedures; 
or the purcliase of additional 
equipment specially designed 
to perform cardiac 
catheterizations. 

(8) "Pediatric cardiac 
catlieterizat ion procedure" 
means a cardiac 
catheterization procedur'e 
performed on a patient age 
five or under . 

(9) "Percutaneous 



274 



NORTH CAROLINA REGISTER 



transluminal coi'onary 

angioplasty (PTCA)" is an 
interventional cardiac 
catlieterization procedure 
used to treat coronary artery 
disease in which a 
balloon-tipped catheter is 
placed in t! :; diseased artery 
and then inflated to compress 
the plaque blocking the 
artery . 

(10) "Primary service area" 
means a geographical area 
defined by the proponent, 
which has boundaries that are 
not further than 45 road 
miles from the facility, if 
the facility has a 
comprehensive cardiac 
services program; and not 
further than 23 road miles 
from tiie facility if the 
facility performs only 
diagnostic cariac 
catheterization procedures. 

(11) "Service area" means a 
geographical area defined by 
the proponent, which has 
boundaries that are not 
further than 90 road miles 
from the facility, if the 
facility has a comprehensive 
cardiac services program; and 
not further than 45 road 
miles from the facility if 
the facility performs only 
diagnostic cardiac 
catheterization procedures. 

.1614 INFORMATION REQUIRED OF 
APPLICANTS 

(a) An applicant that 
proposes a new or expanded 
cardiac catheterization service 
must provide the information 
requested on the acute care 
application form. 

ib) In addition to information 
requested on the acute care 
application form, the applicant 
must provide the following 
information : 

( 1 ) projected number of 
procedures, by type of 
procedure to be completed in 
each cardiac cateterizat ion 
room for each of the first 
12 calendar quarters 
following completion of the 
proposed project, including 
the methodology and 
assumptions used for these 
projections ; 

(2) applicant's experience 
in treating cardiovascular 
patients at the facility 
during the past twelve 
months, including: 

(A) the number of patients 
receiving stress tests; 

(B) the number of patients 
receiving intravenous 
thrombylitic therapies; 

(C) the number of patients 



presenting in the 
Emergency Room or admitted 
to the hospital with 
suspected or diagnosed 
acute myocardial 

infarction; 
(D) the number of patients 
referred to other 
facilities for cardiac 
catheterization and/or 
open heart surgery 
procedures, by type of 
procedure ; 

(3) number of patients from 
the proposed service area 
who are projected to receive 
cardiac catheterization 
services by patient's county 
of residence in each of the 
first 12 quarters of 
operation, including the 
methodology and assumptions 
used for these projections; 

(4) number of patients from 
the proposed primary service 
area who are projected to 
receive cardiac 
catheterization services by 
patient's county of 
residence in each of the 
first 12 quarters of 
operation, including the 
methodology and assumptions 
used for these projections; 

(5) projected referral 
sources of patients; 

(6) evidence of applicant's 
capability to communicate 
efficiently with emergency 
transportation agencies and 
with an established 
comprehensive cardiac 
services program; 

(7) tlie number and 
composition of cardiac 
catheterization teams 
available to the applicant; 

(8) a brief description of 
applicant's in-service 
training or continuing 
education programs for 
cardiac catheterization team 
members ; 

(9) a written agreement with 
a comprehensive cardiac 
services program specifying 
arrangements for referral 
and transfer of patients 
seen by the proponent which 
alleviates the need for 
duplication in 
catheterization studies; 

(10) a written description of 
patient selection criteria 
including referral 

arrangements for high-risk 
patients . 

.1615 REQUIRED PERFORMANCE 
STANDARDS 

(a) To bo approved the State 
Agency must determine that the 
proposed project is capable of 
meeting the following standards: 



NORTH CAROLINA REGISTER 



275 



( 1 ) each cardiac 

catlieterizat ion room will be 
utilized at an annual rate 
of at least 50 percent of 
capacity, measured during 
the fourth quarter of the 
third year followiny 
completion of the project; 

(2) if the facility hac a 
comprehensive cardiac 
services program or the 
proponent intends to perforni 
PTCA . the proponent v;ill bo 
performing at an annual rate 
of at least 50 PTCA 
procedures, measured during 
the fourth quarter of the 
third year following 
completion of the project; 

(3) at least 50 percent of 
tlie projected procedures 
v;ill be performed on 
patients residing v;ithin the 
primary service area; 

(4) each existing cardiac 
catheterization room in each 
facility v.hich has a primary 
service area that overlaps 
the proposed primary service 
area operated at a level of 
at least 30 percent of 
capacity during the 12 montli 
period reflected in the most 
recent licensure form on 
file v;ith t]ie Division cf 
Facility Services; 

(5) the utilization of 
existing cardiac 
catheterization programs 
v.'hose primary service area 
overlaps the proposed 
primary service area is not 
expected to fall belovj 50 
percent of capacity due to 
the institution of the nev; 
or expanded program; 

(6) tlie applicant's projected 
utilization and proposed 
staffing patterns are such 
that each cardiac 
catheterization team will be 
performing at an annual rate 
of at least 150 
diagnostic-equivalent 
catheterizations by the end 
of the third year following 
completion of the project. 

(b) If tlie proponent intends 
to perform pediatric cardiac 
catheterization. the State 
Agency must determine that the 
proponent meets tlie following 
additional criteria: 

(1) capaljility to perform 
both pediatric cardiac 
catheterization services and 
pediatric open lieart surgery 
services ; 

(2) tlic proposed project vjill 
be performing at an annual 
rate of at least 00 
pediatric cardiac 
catheterization procedures 
during the fourth quarter of 



the third 
initiation 
cardiac 
service . 



year f ollov.-ing 

of pediatric 

catheterization 



.1616 REQUIRED SUPPORT 

SERVICES 
Ca) If the proponent intends 
to perform PTCA procedures, the 
State Agency must determine that 
tlio proponent has access to an 
open iieart surgery service 
within the same facility. 

Cb) To be approved the State 
Agency must determine that the 
following ser^'iccs v;ill be 
available in the facility: 
( 1 ) electrocardiography 

laboratory and testing 
services including stress 
testing and continuous 
cardiogram monitoring; 

(2) echocardiography service; 

(3) Ijlood gas laboratory; 

(4) nuclear medicine 
laboratory ; 

(5) pulmonary function unit; 

(6) staffed blood bank; 

(7) licTia tology laboratory/ 
coagulation laboratory; 

(8) microbiology laboratory; 

(9) clinical pathology 
laboratory with facilities 
for blood chemistry; 

.1617 REQUIRED STAFFING AND 

STAFF TRjMIUNG 
Ca) To be approved, the State 
Agency must determine that the 
proponent can meet the following 
staffing requirciaents : 

(1) one pJiysician licensed to 
practice medicine in North 
Carolina who has been 
designated to serve as 
Director of the cardiac 
catheterization service and 
who has the following 
special credentials: 

(A) board-certified in 
internal medicine, 
pediatrics or radiology; 

(B) subspecialty training 
and board eligibility in 
cardiology, pediatric 
cardiology, or 
cardiovascular radiology; 

(C) curreiit clinical 
experience in performing 
physiologic procedures, 
angiographic procedures, 
or both; 

C2) at least one specialized 
team to perform cardiac 
catheterizations, composed 
of at least the f ollov.-ing 
professional and technical 
personnel : 

CA) one physician licensed 
to practice medicine in 
Nortli Carolina witli 
evidence of special 
training and current 
experience in 



276 



NORTH CAROLINA REGISTER 



cardiovascular disease and 
radiation sciences; 

(B) one nurse witli special 
traininy and curicnt 
experience in critical 
care of cardiac patients, 
cardiov.i.ocular medica t ion , 
and catcterir.nt ion 
equipment ; 

(C) at Ic.ir.t tliroo 
technicians v;ith current 
specialized training in 
cardiac care who are 
capable of performing the 
duties of a radiologic 
technologist , 
cardiopulmonary 
technician, monitoring and 
recording teclinician, and 
darkroom technician. 

(b) To be approved, the State 
Agency must determine that the 
proponent can provide the 
folloviing staff training for 
members of cardiac 
catheterization teams: 

(1) certification in 
cardiopulmonary 
resuscitation and advanced 
cardiac life support; 

(2) organized program of 
staff education and training 
vjhich is integral to the 
cardiac services program and 
ensures improvements in 
technique and t}ie proper 
training of new personnel. 

.1618 DATA REPORTING 
REQUIREMENTS 

The facility r.iust agree to 
provide the following types of 
data and information to tlie 
Division of Facility Services, 
in accordance with data format 
and reporting requirements 
formulated by the Division of 
Facility Services: 

1.1) demographic data on 
patients treated; 

(2) financial data; 

(3) clinical data. 

SECTION .1700 - SPECIAL RULES 
FOR OPEN HEART SURGERY SERVICES 

.1702 DEFINITIONS (REPEALED) 

.170^1 CAPACITY IN THE FACILITY 
AND THE HEALTH SERVICE 
AREA (REPEALED) 

.1705 SCOPE OF SERVICES 
OFFERED (REPEALED) 

.1706 PROJECTED UTILIZATION 
(REPEALED) 

.1707 PROJECTED PATIENT ORIGIN 
(REPEALED) 

.1708 SITE AND EQUIPMENT 
(REPEALED) 



.1709 STAFFING (REPEALED) 

.1713 DEFINITIONS 

The following definitions will 
apply to all rules in t]iis 
Sect ion : 

(1) "Capacity" of an open 
lieart surgery suite is 
considered to be 400 
adult -equivalent procedures 
per year. One pediatric open 
heart surgery procedure is 
valued at two adult 
procedures . 

(2) "E.xpaned open heart 
surgery suite" means the 
addition or conversion of an 
operating room to be 
dedicated for open heart 
surgery . 

(3) "Open heart surgery" is a 
highly specialized surgical 
procedure which utilizes a 
heart-lung bypass machine 
(the "pump") to perform 
extra-corporeal circulation 
and oxygenation during 
surgery. Open heart surgery 
includes a wide range of 
procedures designed to 
correct congenital and 
acquired cardiac and coronary 
artery disease . 

(4) "Open heart surgery 
procedure" means an open 
heart operation. 

(5) "Open heart surgery suite" 
moans an operating room 
dedicated to open heart 
surgery procedures which has 
been approved for this use by 
the Certificate of Need 
Section, along with any 
related rooms used for 
preparation and recovery of 
patients receiving an open 
heart surgery procedure . 

(6) "Pediatric open heart 
surgical procedure" means an 
open heart surgery procedure 
performed on a patient age 
five or under. 

(7) "Percutaneous transluminal 
coronary angioplasty (PTCA)" 
means an interventional 
cardiac catheterization 
procedure used to treat 
coronary artery disease in 
which a balloon-tipped 
catheter is placed in the 
diseased artery and tlien 
inflated to compress the 
plaque blocking the artery. 

(8) "Primary service area" 
means a geographical area 
defined by the proponent, 
which has boundaries that are 
not further than 45 road 
miles from the facility. 

(9) "Service area" means a 
geographical area defined by 
tlio proponent, which has 
boundaries that are not 



NORTH CAROLINA REGISTER 



277 



further tlian 90 ror.d 
from the facility. 



.1714 INFORMATION REQUIRED OF 

APPLICANTS 
(a) An applicant that proposes 
a new or expanded open heart 
surgery service must provide the 
information requested on the 
acute care application form. 

Cb) In addition to information 
requested on the acute care 
application form, the applicant 
must provide the following 
information : 

( 1 ) projected number of open 
heart surgery procedures to 
be completed in each open 
heart surgery suite for each 
of the first 12 calendar 
quarters following 

completion of tlie proposed 
project . including the 
methodology and assumptions 
used for these projections; 

(2) projected number of 
cardiac catheterization 
procedures to be completed 
in the facility for each of 
tlie first 12 calendar 
quarters following 
completion of the proposed 
project , including the 
methodology and assumptions 
used for these projections; 

(3) applicant's experience 
in treating cardiovascular 
patients at the facility 
during the past 12 montlis, 
including : 

(A) the number of patients 
receiving stress tests; 

(B) the number of patients 
receiving intravenous 
thronbylitic therapies; 

(C) the number of patients 
presenting in the 
Emergency Room or admitted 
to the liospital with 
suspected or diagnosed 
acute myocardial 
infarction ; 

(D) the number of cardiac 
catheterization procedures 
performed. by typo of 
procedure ; 

(E) the number of patients 
referred to other 
facilities for cardiac 
catheterization and/or 
open heart surgery 
procedures r by typo of 
procedure ; 

(F) the number of patients 
referred to proponent's 
facility for cardiac 
ca tlieterizat ion and/or 
open lieart surgery 
procedure;, by type of 
procedure ; 

(^) iiui;iber of patients from 
the proposed service area 
who arc projected to receive 



miles procedures by patient's 
county of residence in each 
of the first 12 quarters of 
operation for these 
projections ; 

(5) numlier of patients from 
the proposed primary service 
area v;ho are projected to 
receive open heart surgery 
procedures by patient's 
county of residence in each 
of the first 12 quarters. 
including the methodology 
and assumptions used for 
these projections; 

(6) projected referral 
sources of patients; 

(7) evidence of applicant's 
capability to comnunicate 
efficiently v;ith emergency 
transportation agencies and 
v;itli all hospitals serving 
tlie proposed service area; 

(8) the number and 
composition of open heart 
surgery teams available to 
the applicant; 

(9) a brief description of 
applicant's in-service 
training or continuing 
education programs for open 
heart surgery team members; 

(10) evidence of applicant's 
capability to provide both 
cardiac catiicterizat ion and 
open heart surgery services 
on a 24 hour per day, 7 day 
per week basis. 



open 



Iieart 



.1715 REQUIRED PERFORMANCE 

STANDARDS 
To be approved, the State 
Agency must determine that the 
proposed project is capable of 
meeting the follov.'ing standards: 
C 1 ) each open heart surgery 
suite meeting vjill be 
utilized at an annual rate of 
ab least 50 percent of 
capacity, measured during tlie 
fourth quarter of the third 
year following completion of 
tlie project ; 

(2) the proponent will be 
performing a sufficient 
number of catheterizations to 
generate tlie projected number 
of open heart surgeries 
during each quarter; 

(3) the proponent will be 
performing at an annual rate 
of at least 50 PTCA 
procedures. measured during 
the fourth quarter of the 
third year following 
completion of the project; 

(4) at least 50 percent of 
the projected proccdui'er. will 
bo performed on pationLs 
residing wllhin tlic prini.iry 
service are.i; 

(5) each c.xi;jting open licart 
surgery suite in each 

surgery facility which has a primary 



278 



NORTH CAROLINA REGISTER 



service area that overlaps 
the proposed primary service 
area opex'atod at a level of 
at least 80 percent of 
capacity during the 12 month 
period reflected in the most 
recent licensure form on file 
with DFS; 

(6) the utilization of 
existing open heart surgery 
programs whose primary 
service area overlaps the 
proposed primary service area 
is not expected to fall below 
50 percent of capacity due to 
the institution of the new or 
expanded program; 

(7) the applicant's projected 
utilization and proposed 
staffing patterns are such 
that each open lieart surgery 
team will be performing at an 
annual rate of at least 150 
open heart surgical 
procedures by the end of tlie 
third year following 
completion of the project. 

.1716 HOURS OF OPERATION 
To be approved, the State 
Agency must determine that the 
proponent lias the capability of 
providing open heart surgery 
services 24 hours per day, seven 
day per week. 

.1717 REQUIRED SUPPORT 
SERVICES 

(a) To be approved, the State 
Agency must determine that the 
follov/ing services will bo 
available on a 24 hour per day, 
7 day per v;eek basis in the 
facility: 

( 1 ) electrocardiography 
laboratory and testing 
services including stress 
testing and continuous 
cardiogram monitoring; 

(2) echocardiography 
service ; 

(3) blood gas laboratory; 

(4) nuclear medicine 
laboratory ; 

(5) pulmonary function unit; 

(6) staffed blood bank; 

(7) hematology laboratory/ 
coagulation laboratory; 

(8) microbiology laboratory; 

(9) clinical pathology 
laboratory v;ith facilities 
for blood cliemistry; 

(10) dedicated cardiac 
surgical intensive care 
unit ; 

(11) emergency room with full 
-time director, staffed for 
cardiac emergencies vjith 
acute coronary suspect 
surveillance area and voice 
con-.municat ion linkage to the 
ambulance service and the 
coronary caro unit; 

(12) cardiac catlieterization 



services including both 
diagnostic and 

interventional cardiac 
catheterization 
capabilities . 
(b) To be approved the State 
Agency must determine that the 
following services will be 
available to the proponent: 

(1) preventive maintenance 
program for all biomedical 
devices, electrical 
installations and 
environmental controls; 

(2) cardiac rehabilitation 
program; 

(3) community outreach and 
education program. 

.1718 REQUIRED STAFFING AND 

STAFF TRAINING 
(a) To be approved the State 
Agency must determine that the 
proponent can meet the following 
staffing requirements: 
( 1 ) one cardiovascular 

surgeon who has been 
designated to serve as 
director of the open heart 
surgery service and who has 
the following special 
credentials : 

(A) certified by the 
American Board of Thoracic 
Surgery; 

(B) special qualification 
in cardiac surgery; 

(2) at least one specialized 
team to perform open heart 
surgery composed of at least 
the following professional 
and technical personnel: 

(A) one cardiovascular 
surgeon board certified 
(or board-eligible) by the 
American Board of Thoracic 
Surgery ; 

(B) one assistant surgeon, 
preferably a 
cardiovascular or thoracic 
surgeon; 

(C) one board certified 
(or board eligible) 
anesthesiologist trained 
in open heart surgery; 

(D) one certified 
registered nurse 
anesthetist ; 

(E) one circulating or 
scrub nurse, with recent 
specialized training in 
cardiac surgical 
procedures; 

(F) one operating room 
technician or nurse with 
recent specialized 
training in cardiac 
surgery procedures; 

(G) two certified pump 
technicians ; 

(H) staff for the dedicated 
cardiac surgery intensive 
care unit sufficient to 
ensure the availability of 



K'ORTH CAROLINA REGISTER 



279 



1 RN for every 2 patients 
during the first ^8 hours 
of post-operative care; 
(3) at least two fully- 
qualified cardiac surgeons 
on the staff, at least one 
of whom is board-certified, 
and the other at least 
board-eligible; one of tliesc 
surgeons must be on-call at 
all times; if pediatric 
surgery is performed, one of 
these surgeons must bo 
specially trained and 
clinically competent to 
perform pediatric surgery, 
(b) To be approved, the State 
Agency must determine tJiat the 
proponent can provide tlie 
following staff training for 
members of cardiac surgical 
teams : 

(1) certification in 
cardiopulmonary 
resuscitation and advanced 
cardiac life support; 

(2) an organized program of 
staff education and training 
which is integral to the 
cardiac services program and 
ensures improvements in 
technique and the proper 
training of new personnel. 

.1719 DATA REPORTING 
REQUIREMENTS 

The facility must provide the 
following types of data and 
information to the Division of 
Facility Services, in accordance 
with data format and reporting 
requirements formulated by the 
Division of Facility Services: 

(1) demographic data on 
patients treated; 

(2) financial data; 

(3) clinical data. 

SECTION .2400 - CRITERIA AND 
STANDARDS FOR INTERMEDIATE CARE 
FACILITY/MENTALLY RETARDED 
CICF/HR) 



average occupancy, over the 
tliree months immediately 
preceding the submission of the 
proposal, of the total number of 
ICF/MR beds within the facility 
in v.'hich the new beds are to be 
operated was at least 90 
percent . 

(d) A proposal 
ICF/MR beds must 
of t}ie following 



to provide 
comply with one 
models : 

(1) small, residential, five 
beds or less, ICF/MR 
community-based freestanding 
group home 

-1-5 bt 



facility , i.e. 
model ; 
( 2 ) cxmmt 

OT" 

s e rving 
por s on-s who m 

n-ontrm buln -^ ory ; 




r»- 



e cis 

f acr li t y 

r ct ar dcd 

noniiiobilc , 

OT* Ptrrb il^ 

community 



based. 


15 


bods 


or 


less, 


scrvina 


per 


sons vjith 


severe 


or 


nro 


found 




mental 


retardat 


ion 


or 




related 


condition?: : 


or p 


ersons vjith 


mod'-'vato 


ncntnl 


retardat ion 


who )invc o 


ther h 


anriicappinq 



conditions ; 

(3) state-operated mental 
retardation centers 
converting existing beds to 
ICF/MR beds; 

(4) health profession 
schools, interdisciplinary 
specialty centers, and 
rese£irch centers proposing a 
residential facility larger 
than 15 ICF/MR beds but not 
to exceed 30 ICF/MR beds. 

Notice is hereby given in in 
accordance with G.S. 150B-12 
that the DUR - Facility Services 
intends to amend regulation 
cited as 10 NCAC 3R.1003. The 
purpose of the proposed 
regulation: Rule incorporates by 
reference the State Medical 
Facilities Plan. Change would 
apply to the 1987 SMFP. 



.2404 CAPACITY IN THE FAC 
AND IN THE HEALTH 
SERVICE AREA 

(a) Proposals to provide 
ICF/MR services must 
consistent v.'ith the appli 
North Carolina State Health 
(the one in effect at the 
the review period begins) 
State Medical Facilities 
and the applicable h 
systems plan. 

(b) A proposal to provide 
or expanded ICF/MR services 
specify the number of I 
beds to be operated f o] 1 
the conpletion of tlie pro 
project . 

tc) A proposal to provide 
expanded ICF/MR beds will n 
aijproved unless the ov 



ILITY 



be 
cable 
Plan 
time 
, the 
Plan, 
ealth 

now 

must 
CF/MR 
owing 
posed 



o t be 
erall 



Tlie proposed 
this action i: 

Statutory 
131E-177( 1 ) 



effective date of 
January 1 , 1986. 



Authority : 



G.S. 



The public hearing vjill be 
conducted at 10:00 a.m. on 
September 22, 1986 at the 
Hearing Room, Room #201, 
Division of Facility Services, 
701 Earbour Drive, Raleigh, N.C. 

Comment Procedures: Written 
comments sliould bo sent to Mr. 
I. 0. VJilkcrson, Jr., Director, 
Division of Facility Services, 
70 1 Barbour Drive, Rnlcigh, N.C. 
27603. These comments will be 
received from tlic date of 



2S0 



NORTH CAROLINA REGISTER 



publication 
1906. 



until November 10, 



SECTION 



.1000 - SPECIAL 

AMD STANDARDS: 

IN GENERAL 



CRITERIA 



.1003 STATE MEDICAL 

FACILITIES PLAN 

(a) The -t9&6 1987 North 
Carolina State Medical 
Facilities Plan contains the 
following information: 

(1) inventory of certain 
categories of inpatient and 
outpatient health care 
facilities, including number 
of becls and utilization of 
Buch ; 

(2) type of services 
provided by each category of 
health car facility; 

(3) projections of need 

for ricute care liospital 
(including rel^.abil itab ion 
services), long-term care 
facilities (including 
nursinj homes and homo 
health agencies) , mental 
health facilities and 
end-stage renal dialysis 



services for 
geogra-hical areas 
state ; 
(4) statement 
related to 
facilities, 
services, long 
psychiatric 
chemical 



various 
of the 



of policies 

acute care 

rehabilitation 

term care, 

facilities , 

dependency 



facilities, and facilities 
for ir.termediate care for 
the mentally retarded. v;}iich 
are us:,d with other criteria 
contai.ied in this Subchapter 
and in G.S. 151E-183 and 
need projections to 
determine wliether 

applications proposing 
additional beds and services 
of t!:ese types may be 
approved under 
certificate of need 

(b) Thii, plan can be 

in from the 

Facility Service: 



the 

program . 
obtained 
Division of 
701 Barbour 



Drive, Raleigli, North Carolina, 
at a cost of forty dollars 
($40.00) per copy. Th is picrrt 

■i n sp e ct io .i zx t t-hc 

Adn lyrics' cir.i t ivs Pro ceciurcs 

Se c ti on, A tto rney 6xT i e ral ' s 
ef ^icc, -^-G^ Etrert Jones S tre a t, 
fcri^j:^ ;-OTrt-h Car o3 rJ^Ta-r This 

plan is also available for 

innp e ctio .i at tlie Division of 
Facility Services. 



Notice is 
accordanc .: 
that th : 
Comnissio.i 
regulations 



hereby given in 

with G.S. 150B-12 

Child Day Care 

intends to amend 

cited as 10 NCAC 3U 



.0102 


.0202; 


.0204; 


.0302; 


.0303 


.0401 ; 


.04 02; 


.0501 ; 


.050A 


.0703- 


.0708; 


.0903; 


. 1001 


. 1003; 


. 1201 ; 


. 1302; 


. 1403 


. 1902; 


. 1903; 




.2001- 


-.2004; 


.2101 ; 




.2201 


.2204; 


.2316. 





The purpose of the proposed 
regulations is to set forth 
child day care licensure 
requirements . 

The proposed effective date of 
this action is January 1, 1987. 



Statutory Authority: G.S. 
145B-158.3. 



110; 



The public licaring will be 
conducted at 10:00 a.m. on 
September 18, 1986 at Mission 
Valley Inn, 2110 Avont Ferry 
Road, Raleigh, NC . 

Comment Procedures: Written 
comments and requests for tine 
to speak at tlie public hearing 
should be addressed to: Lucy 
H. Bode, Chairperson, Child Day 
Care Commissioji, 701 Barbour 
Drive, Raleigh, N.C. 27603, and 
be received on or before 
September 12, 1985. 



SUBCHAPTER 3U 



SECTION .0100 - 



CHILD DAY CARE 
STANDARDS 

PURPOSE AND 
DEFINITIONS 



.0102 DEFINITIONS 
The terms and plirases used in 
this SrJjchapter shall be defined 
as follcv;s except when tlie 
content of the Rule clearly 
requires a different meaning. 
Tlic definitions prescribed in 
G.S. 110-86 also apply to these 
Rules . 

(1) "Agency" means the Child 
Day Care Section, Division of 
Facility Services, Department 
of Human Resources, located 
at 701 Barbour Drive, Pirs-t 
effice Bo^ +£20e-r Raleigh, 
North Carolina 2^^&5 27603. 

(2) "After Sciiool Care" means 



day care 


l^rovided to 


school-aqod 


ciiildren as 


defined in 


P:irnqraph (21 ) of 


this Rule 


vjhich does not 


exceed four 


hovirs on a school 



d ay. 
-(-fr> (9) "Day Care Home" means 
day care plan as defined in 
G.S. 110-86(4) v; hich provid es 
day care on a regular basis 
of at least once per vieek for 



m oi'o than four liours, but 
le ss tltnn 24 hours per day. 

Child care ai'Xa ngem c nts 

e.xc]udcd from 1 he definition 



NORTH CAROLINA REGISTER 



281 



of day c are facili ty in G.S . 



110-86(3) arr; excluded as 


da^' 


care hones . 
(12) "Group" moans the 
childron ar.siqncd to 


a 


specific carcqivcr. 


or 


careqivors. to meet 


the 


staff -child '-atios sot f 


orth 


in G.S. 110-91(7) and 


this 


Subchapter, usim a specific 


space v.'hich is defined 


by 



walls or wail substitutes. 



-(-K:+ (16) "Operator" means 

the person or entity hold 
responsible by lav; as the 
owner of a child day care 
business. Tlic terins ''-ovrrtxrt 
"operator" ■ "sponsor" 
"licensee" are 
interchangeably . 

-H-6-> (IS) "Preschool-aged 
child" means any 
between birth and fiye 
who does not fit 
definition of school 



child 
(21 ) . 



in 



Paragraph 
d 



child 
years 
the 
-aged 
(1 9).' 



ags 

wlio is 
trf ag-c 
October 16 
c_hop_l year 
in, or 




■H-9^- (21 ) "School 
means any child 
least five years 
on or before 

tlie current scnooi year ana 
vjiio is enrolled in, or has 
attended, a public or private 
grade school or kindergarten. 

-ta^ (22) "Section" means the 
Child Day Care Section, 
Division of Facility 

Services, ■?<>+ B arbou r Bt-xt^tt 
Pcrs-t ©ftTTC- fitrx t£-SO0-r 

ferlrc i g h , ; 'tyrttt (jurtr lina 

2 7605 . Dcp-^ rt -".ent of Human 



Resources . 




Th 


-I 


section 


is 


loc 


ated at 


tl 


o 


2dd 


rcss 


qi-' 


on 


m 


Paraqrapl 




(1 ) 


of 


th 


is 



Rule. 

■(-2£-)- (24 ) "Supervisor" moans, 
for the purposes of 

implementing G.S. 110-91(7), 
the person on site, srt -Hn:! 
cciutui , rho -irs r espor. s dblc 
f or t he tier; — to — 6ray op-cratritm 
trf ±hs crctrlrc-r-r at the center 



who 


has 


tlie 


o\ 


et-a 


11 


resp 


onsibiliti 


' for plnnn: 


nq 


and 


adninist 


ring 


tlie 


chi 


Id 


care 


p r o n r r n 




The 


tor 


ms 


"supervisor" 


and 


"director" 


sre 


used intorchanr 


eahl\ 







SECTION .0200 



GEJ,'ER.'\L 
PROVISIONS 
RELATED TO 
LICENSING 



.0202 CENTERS SUBJECT TO 
LICENSURE 

Any child care arrangement 
'■.'here si;-: or more children under 
13 years of age (not including 
the operator's o\in after-school 
children as defined in this 
Subchapter), receive care, on a 
regular basis of at least once 



per week. for more than four 
hours but less than 24 hours per 
day, regardless of the time of 
day and regardless of vjhethor 
the same children attend 
regularly. must be licensed. 
These arrangements include, but 
are not limited to: 
(3) Temporary care 

arrangements, including those 
v.'hich provide care on a 
seasonal, drop-in, p-'.rt-time, 
or after-school basis as 
defined in Rule .0102 42-2^ 
( 26 ) of this Subchapter; 



.0204 CHANGES REQUIRING 
ISSUANCE OF A NEW 
LICENSE 
(a) When the operator, as 
defined in .0102 (14), (16), of 
a licensed day care center 
changes, the nev; operator must 
apply for a new license as 
prescribed in Section .0300 of 
this Subchapter. A child day 
care license cannot be bought, 
sold, or trajisf erred by one 
operator to another. 



SECTION .0300 



PROCEDURES FOR 
OBTAINING A 
LICENSE 



.0302 APPLICATION FOR A 
LICENSE 
(b) The applicant is 
responsible for arranging for 
inspections of tlie center by the 
local sanitarian, building and 
fire inspectors. The rpplicant 
must provide an approved 
inspection report signed by the 
appropriate inspector to the 
section's representative. 
(1) A provisional 

classification may 
accepted in accordance 
Rule 

.0401 (a)(1) of 
Subchapter . 
( d ) The applicant, or t he 
person responsible lor 



be 
with 



this 



the 



day-to-day operation of the 
center, must be able to describe 
the plans for the daily program, 
including room 



arrrnqament , 



Ttaffinq patterns. cc uipmcnt , 
and ruonl ies . 



5;rf fie lent 



detail to show that th.e center 
v.'ill com p ly v>ith Sectio ' is .0500 
an d .0600 of this Subchapter. 
The applicant shall .t ake the 
following v;ritten information 
available to the section's 
representative for review to 
verify compliance with 
provisirns of this S'^.bchapter 
and the licensing law: 
CI) Daily schcdule(s), 

(2) Activity plans, 

(3) Emergency care plan. 



282 



NORTH CAROLINA REGISTER 



(4) Discipline policy, and 

(5) Staff development plan, 
(c) The applicant mus t , 

shall , at 1 minimum, dononstrate 
to the section's representative 
that measures will be 
implemented to have the 
following information in tlie 
center's files and readily 
available to the representative 
for review. 

(f) The section's 
representative will s hall 
measure all rooms to be used for 
day care and w-rl-i sjiall^ assure 
tjiat an accurate sketcii of the 
center's floor plan is part of 
the application packet. The 
section's representative w ill 
shall enter the dimejisions of 
each room to be UK;ed for day 
care, including ceiling height, 
and ' .;ill shall show the location 
of the bathrooms, doors, and 
required exits on the floor 
plan . 

.0303 RENEWAL OF A LICENSE 

(b) The section's 
reprcscnta -ive sliall make one or 
more visits to the center to 
determine compliance vjith the 
licensing standards. The first 
of these compliance int;pection 
visits vfill - shall be made during 
the 60 days immediately 
preceeding the expiration date 
on the license. Tliis ^r::ii shall 
be the announced renci.'al visit. 
The repro:::ontati\'e wd-H: shall 
review the records and documents 
identified in Rule .0302(d) and 
(g), obser\'e in the classroons, 
and perform other activities 
necessary to evaluate 
compliance . 

(c) When the section's 
representative documents 
noncompliance on the announced 
rencvjal visit, based on tiic 
severity and exfcent of 
noncompliance, the 
representative may return to the 
center at a later date, but 
prior to t.ie license expiration 
date, to d 'terminc if compliance 
has been achieved; advise the 
licensee to submit v/ritten 
verification that the 
nonconpliance has been 
corrected; recommend issuance of 
a provirional liccnro in 
accordance v;itli Section .0400 of 
tills Subchapter; or rccomncnd 
denial of the application for 
renevjal . Final disposition of 
tlie ^"ittr recommendation to deny 
is the decision of the section 
chief. 

(e) Regardless of tlio 
reason. v;h:;n a application for 
renewal is received by tho 
section after the license 
e.xpiration date, the e.xisting 



license re m ain: 



shall remain 



valid until the section notifies 

tlic licen.see otherwise pursuant 

to tlie provisions of 1 50A 3 . 
150B-3. 



SECTIOxN .0400 



ISSUANCE OF 
PROVISIONAL 
LICENSES 



.0401 PROVISIONAL LICENSE 
(c) Tho provisio;ial license 
and the document describing the 
reasons for its a.?suance shall 
be posted in a prominent place 
in the center. 

.0402 SPECIAL PROVISIONAL 

LICENSE 
(a) A special provisional 
licciise, as a minimum penalty, 
may be issued for a six-month 
period in the following 
situations -. 

;2) VJhen the section 

determines that a staff 
member, or other person 
present at the center with 
tho operator's permission, 
abused/neglected any child 
in care. a nd the operator 
Icnow about or had reason to 



know. or 


a^tcr e.xercisinq 


reasonable 


care and 


diliaonco . 


should have had 


knowlodqo 


of the 



a b 1 1 ' -■o/neqlect ; 
(d) Nothing in this Rule 
shall restrict the Division from 
using any other statutory or 
administrative penalty 

available, includijig the 
provisions in -i-&Q A 3 C c ) 
1 50B-3( c ) to sumr'iarily suspend a 
license if the licaltli. safety or 
v;elfare of tho child is in 
jeopardy. 



SECTION .0500 



CAREGIVING 
REQUIREMENTS 
FOR CENTERS 



.0501 STAFF/CHILD R^ITIO 
(d) Children mtrcrt shall be 
adequately supervised at all 
tii.ics. Adequate supervision 
shall mean visual supervision 
with the exception of brief 
periods necessitated by 
emergencies and day-to-day child 
care responsibilities. When 
1 c r. s t li an 30 cliildren ar e 



present , 


.-ind 


onl 


V one a 


idult 


rarogiiT'r 


is 


ronuir^d to 


meet 


the sta 


ff-ch 


i]d 


rat io , 


food 


preparation s: 


hal] 


be consid 


lored 


a c! a V - 


to-da 


v 


child 


care 


rosnons ib 


iilitv 


as 


long as 


the 


chilc'ren 


are 


als. 


inside 


the 


facil itv 


and 


the 


caregiver 


can 


rc^nonf' 


to 


ti 


•lo children 


iincdiate 
(q) Tho 


■ly. 

provision 


-■ of G.S. 





NORTH CAROLINA REGISTER 



283 



110-91(7) a. and b. shall apply 
t o a 11 centers licensed f o r 



fewer than 50 



proi'isions of G.S. 
triii a pply -iro shall 
allovfod for all centers 
30 



children . The 
1 10-91 (7)c.3. 
also be 



caring 
for fewer than 30 children. 

(h) In computing the 10;; 
tolerance, all fractions wd-Hr 
shall be rounded down, except 
that in centers licensed for 6 
to 10 children, inclusive, a 
Lolcranco of 1 child is allowed, 
unless all children arc less 
';han 2 years of age. 

(i) When a center uses 
the tolerance for botli emergency 
situations and after-school 
care, the total number of 
children present at any time 
c ann ot shall not exceed the 
capacity plus 10;;, 
centers licensed for 
inclusive, as 
this Rule. 
ratio for 



licensed 

except for 

u to 10 children , 

Provided in (h) of 

" (k) The staff/child 



centers licensed for fev;er than 
30 child r en vthich provide ca re 
e xc^l usivolv fo r school-ag ed 



children , 



Jofinod in Rule 



.0102(21) of this Subchapte r, 
ihall be one adult caregiver for 



children . 



Vihon only one 



caregiver as roqu 



irod to meet 



:he st a tf/c hi l_d r atio. ano ther 

nerson 



who 



least 16 



of ago and on the premises 
be 



years 
shall 



available 



for 



"ol iof . 



emorqancy 



(1) "For purposes of G.S. 



110-91 (7)c . 1 

"1 



child 



v)hc 



ttains his/her second b irth day 
ay remain in th e gr oup 



ohi Idren undo r 



with 
until space 



is available in the ne.xt oldest 



group . 
.0504 



(a) Ea 
school -a 
in Rule 
Subchapt 
r.chedule 
children 

4-f-> (e) 
programs 
hours pc 
activity 
act ivit i 
combinat 
outdoor 
activity 
■.jritten 

SECTION 



CAREGIVING ACTIVITIES 
FOR SCHOOL-AGED 
CHILDREN 

ch center caring for 
ged children as defined 
.0102 -f-l-fr^ (21 ) of this 
er vjill have a written 



for each 



group 



of 



For school-aged 

operating 4 or fev;er 

r day, the written daily 

plan will include three 

es . Those may be any 

ion of indoor and 

activities. The 

areas must support the 

plan . 

.0700 - HEALTH AND OTHER 
STANDARDS FOR 
CENTER STAFF 



.0703 AGE REQUIREMENTS 
(b) Anyone v;lio is at least 
13 years of age, but less than 
'.6 years of age, may work in a 



day care center on a volunteer 
basis, trs long trs thztt ]:er£.cm irs 
tt nd er t-hc d- ircct s upervision trf 
a required i; t af f pers o n . as long 
as he/she is supervised by and 



v.'orks v;ith 



required staff 



person who is at least 21 years 
of age, and also meets the 
health standards for volunteers 
found in Rule .0702 of this 
Section . 

.0704 EDUCATION AND E;:PERIENCE 

REQUIREMENTS 
(a) A pcr-on cm -s-itrc vrL±h 
The on-site administr." tor 



who 
for 
the 



has overall responsibility 
planning and administering 
child care program shall b-c meet 
the following reguiremoits : 
( 1 ) Bo at least 21 years of 

age. and be literate, and 
(2) Have either a hirh 

school or general education 
diploma 

— , and 

-(-H- (3 ) ^rrs pe r son nrcrst 

also li^v e Have two years of 
full-time verifiable child 
day care or early childhood 
e.xperience; or an 
undergraduate, graduate, or 
Associate Degree, with at 
least 12 semester 'lours in 
child development, child 
psychology, early childhood 
education or directly 
related field or, a Child 
Development Associate 
Credential or diplor a from a 
community or technical 
college early childhood 
program 

— ; and 

■(rSri- (Al iri tttkK-bioTr t^:- 

■oat is'f y ing ( 1 ) abo'-^cr* this 
p.: ;r s o :i m^s^r als o v e i if y 
s ucc c : :.sful co mp l ct row o f. 
Have verification of having 
successfully compl.^ted, or 
be currently trc enrolled in, 
3 credit hours, or 33 clock 
hours, of training in tlie 
area of child care program 
administration; or, have one 
year e.Kperience performing 
administrative 

responsibilities; or, have 
one year e:;perience 
performing administrative 
respo.nsibilit ies and have 
another full-time staff 
person, v;ho meets t+rc 
requir e ments -in ( 1 ) through 
( 3 ) of this Paragi-aph v;ho 
ha^ r orjponsibili 'by is 
rcsponsibl e for pla;.ning and 
i mplementing the daily 
iorogran 

— a t the center to comply 
with Sections . 0! 00 and 

.0600 of this Subchapter. 



(b) The administrator of a 



284 



NORTH CAROLINA REGISTER 



child day care procrra:;! who does 
not routjn o lv work on sjto, or 
who is res lonsible for noro th an 
one ccntc; and/or home. shall 
have vor? fication of hivincr 
successful Iv comnleted, or he 
currently o nrollcfl in, 3 credit 
hours, or 33 clock hoiTS, of 
t raining i n child care procrram 
administration; or. 



year 



experience 



performi ng 



a dministrative responsj hil itcs 
and have ab least one full-time 
staff perron on site at each 



center 



vjho 



meet? 



the 



requirements of (1) through (3) 
of this Pa'agraph. 

C c ) Any • i erson v;ho is at leas t 
21 years of age and literate vjho 
was e mplo yed as an on-site 
administra or in 



da y care 



p rogram on January 1 , 1906 and 
who v;ill have accumulated 
total of f i ve years experience, 



tvjo of V) lich were performing 
administra I : ivo responsih j 1 it ies , 
betvjeen Jnnuary 1, 1980 and 
January 1, 1987, shall be exempt 
from all other provisions of 
this Rule. 

-fb-> ( d ) The teacher/caregiver 
with responsibility for planning 
and implementing the daily 
program for each group of 
children :;hall be at least 18 
years of age and have at least 
one of the follovjing; 

(1) A high school or general 
education diploma and one 
year verifiable experience 
vjorkin-j in a child day care 
center: or successful 
complclion of the Department 
of Fublic Instruction's 
Child Care Services 
Occupational }Iome Economics 
Progra:ii; or 

(2) A Child Development 
Associate Credential; or 

(3) Graduation from a one or 
tv;o-ye ;r child care program 
at a community college or 
technical college; or 

(^i) An undergraduate or 

graduate degree with at 
least die equivalent of four 
semester hours in cliild 
dcvelo'jment , child 

psychology, or early 
childhood education; or 
(5) Five years of verifiable 
experience working in child 
day ca^-e. tnTd-r vvitliin tire 
pas t -Jiver ye ars , A-G cl o ck 
htrcrro o-f d-otrtir . - .cn t ed traini itg 
■in ehil-d cle vcl o pm t un t . 
-(-c-)- ( e ) T>.o aide or person 
responsible to the 
tcachcr/caregiyer for assisting 
witli plan. ling and implementing 
the daily program shall be a 
high school graduate; or have a 
general education diplor.ia; or be 



at least 18 years of ago and 
literate . 

•fii-)- ( f ) Any person whose job 
responsibility includes driving 
a vehicle to transport children 
shall: 

(1) Be at least 18 years of 
age; or a duly licensed 
school bus di'iver; and 

(2) liave a pei'sonal driving 
record with not more than 
trhrtrc fou r active points and 
no conviction of Driving 
V.' hile Impaircfi (PHI) within 
the last three years ; and 

(3) Have a valid driver's 
license; or 

(4) If regularly transporting 
twe lv e trr mtrre more than 
tvjelve persons, have a valid 
North Carolina Class B 
license, or comparable 
license from the state in 
which he/she resides. 

■fe-)- ( q ) Non-caregiving staff 
or any person providing support 
to the operation of the program 
shall be at least 16 years of 
age; and meet the requirements 
of the local health department 
for food handlers, if 
applicable, vjlien duties are 
related to food preparation or 
food service . 

■i^t^ ( h ) Any substitute who 
has caregiving responsibilities 
shall, at a minimum, meet the 
qualifications for an aide 
stated in Paragraph ■(-c-> (e ) of 
this Rule. In addition, any 
substitute driver mtrst- shall 
also possess a valid driver's 
license . 

.0705 SPECIAL TRAINING 
REQUIREMENTS 

(a) At least one staff member 
mtrstr s hal l be knowledgeable of 
and able to recognize common 
contagious and i;ifectious 
diseases . 

(b) The center shall l^ave on 
file verification that at least 
one staff person on -sirte ts 
ctrr-rcrrfcTy ctrrt-irf-itrd zrs htnrirrg 
vjho is present at the center has 
successfully completed a course 
in basic first aid within the 
last three years . 

(c) A first aid information 
sheet triii shall be posted in a 
prominent place for quick 
referral. Copies of this form 
may be requested from the 
Medical Society of the State of 
North Carolina, P. 0. Box 27167, 
Raleigh, North Carolina, 27611. 

-fxH- At- l e ast on-* pers o n wh o 
hars a cu r ren t Rcx\ 6 i oss Advan c ed 
Lif e Sziy-irrg err !-.'rrtxrr S- af c t y 
-InstriTc-t or c-cr-tri.-f-itra-te s^htrli 
strpc-r visg "fcht; clrirl-clr-en vjhenevcr 



•fc-Jr^y 



p^crr t-ixrirpa-b-ing 



Trvcnnm ing activities in or near a 



NORTH CAROLINA REGISTER 



285 



:TWtnT'. ni i 11 y peel txt* o M'icl* 



rKTtly of 



kN 



s tr'-ictioral 



E 
an 
dc 
in 
ii 
Th 

de 
?.u 

?1 
in 
ae 
?1 
ce 



0706 STAFF DEVELOPMENT PL/ 
acji day care center nliall 
nually prepare v.'ritten staff 
vclopnent plan v;hic h 
corporator. r^ variety of 



oprortiinit i s 



e center's plan shall describe 
ovisions to satisfy the staff 
velopment star.dards stated in 
lo .0707 of this Section. The 
shall be revised to 
any changes 
cessary during tha year. Ihe 
an shall be on file in the 
nter . 



an 
corporate 



.070 7 STAFF DEVELOPMENT 
STANDARDS 

(a) Each day care center 
shall provide. or arrange for 
the provision of, training for 
jitaff to assure that each new 
•CTTpitrytrc-r diic l u di ng th-e 
rjt:7Tdrt' ii;or . staff no rson VJho has 
coiitact v;ith tiie children will 
receive a nininum of ttH ten 
clock l^ours of on — s-iirc 
orientation within the first six 
•■.■ce]:s of cmployncnt . This 
orientation rhall include 
training in their job-specific 
duties and resror.sibilities ; n 
review of the child day care 
licensing law and regulations; a 
review of the individual 
center's por.sonnel and 
operational policies, purpose, 
and goals; an explanation of the 
role of state and local 
government agencies, tlicir 
effect on the center, tjieir 
availability as a resource, and 
individual staff 
responsibilities to 
representatives of state and 
local government agencies; 
observation of center 
operations; maintaining a safe 
and healthy environment ; and 
training to recognize sympto;ns 
of child abuse and neglect . 

(b) The center director and 
any staff who have 
responsibility for planning and 
supervising a day care program, 
as v;ell as staff wlio vjork 
directly with cJiildren, shall 
participate in a ninirn'im of 20 

clock hours of training 

activities, according to t)ic 
individual ' s assessed needs t 

_^ vrh icli ar e c-xtiTcr cl ' iild otrrc 
- r e l ated or rc-1-a-ttrd t-a "Hrc 
p crs orr^ 'joh i u : jpG iis ibil it cs . 
T uch training s hal l bo oitli er 



rclc- 


tc 


d to 


child care or to 


the 


'■ior son 


's 1 


ob 1 


ef^ponsibil it 


ies . 


.-or 


St 


aff '. 


.'orki- 


iq le 


ss than 


^0 


liours 


per 


■,;eol 


on 


a regular 


1533 2 


s . 


the 


training 


recruirement 


rnav 


be 


prorated 


as follows : 





V.'OR KING H OU RS PE R WEEK 
CLOCK H(:UR.S REQUIRED 






- 10. . 


. . .5 


HOURS 


1 1 


- 20. , 


. . 10 


HOURS 


21 


- 30. . 


. . 15 


HOURS 


31 


- 40. . 


. .20 


HOURS 



-f+4 Ihr-J oir. vjl o y c es s hal l 

r ec eiv e a i iinimum xrS t-crt 
cl o cl: irotrr-- xr£ ■br-airrirrg 
d u r in g t+;t? fii s t yo^rr xri 
omploymcn'^r in a a d j. t i o 1 1 "to 

on — si t e oir ien t a t iou re qui r ed 
in -frt-)- o-£ ■Hri-s- Rtrirc— 
( 2 ) St af 1 vj itl'i tt: coi 



of 



m o n tirs 
scmo d.ny 
r cceii-'c 
cl oclc 



empxoynierrj in ciTe 

c a r c pr ogr am sl'iaxl 

a mi) ' iimuin o-f &^ 

l ours o-f t rainin g 



.0 708 MEETING STAFF 

LEVELOPMENT 

STANDARDS 
Staff nay meet the staff 
development standards by 
attending child care v;orkshops, 
conferences. seminars, or 
courses p rovided each training 
activity satisfies the following 
criteria : 
c- c tivity , 




^ p cii.:;or c d 
rrTT^TOolr-r 
o r c;anlzai:iorL . 
ag e n cy irra^-b hn 
sec t ion . 
( 1 ) Prior approval frr^m the 



pL'cressional 

or g^-vemrrrcn-fc 

appr o ved by tl ' ic 



s ection is not required for 
training offered by an 



accrod ited 



collcre 



university, qovernmei t agenv. 



state/national 



professional organirat ion or 
their recognized affiliates, 
provided the content complies 
w ith the provisions of Rule 
.0707(b) ■ 
(2) Prior approval from tlie 



'.ect ion 



reguiren on 



a nnual basis for agercies and 

organizations v;hic ii have 

staff v)ho provide, or who 
a rrange for the prov i sion of, 
traini ng for child care 



operators and/or strff . 



To 



o btain such appro^'al , the 
agency or organization shall 
submit their annual training 
plan to the section. 

(3) Prior approval fo:^ each 

tra i ning event r ust bo 

obtai ned from the section b y 
a n org n nization. ass ociation, 
o r ind ividual not in c luded in 
Paracraphs (1) and (2^ of 
tills Rule. 

(4) No more than five clock 
hours of the 20 clock hours 
of training rognired annually 
■■-Jiall be provided on site by 



286 



NORTH CAROLINA REGISTER 



center 



staff. 



This 



restriction shall not app ly 
if the fcntcr staff providinci 

the t raining l>avc been 

a pproved accordinc; to the 
criteria outlined in eith er 
Paraqra'-ih (1) or (2) of this 
Rule. 



SECTION .0900 



NUTRITION 
STANDARDS 



.0903 REQUIREMENTS FOR 

CHILDREN AGED 24 MONTHS 
AND OLDER 
Meals and snacks shall be 
planned according to the number 
of hours a child is in the 
center. These rules apply in 
all situations except during 
sleeping hours and nighttime 
care : 
( 1 ) For preschool -aged 

children in the center at 
least tv;o hours but less than 
four liours, and for all 
school-aged children > one 
snack shall be provided 
unless the time attended 
covers a normal meal hour, in 
which case, a meal shall be 
provided . 

(3) For children in the center 
at least six hours, but less 
than ten twelve hours, ti;o 
meals and one snack or tv;o 
snacks and one meal shall be 
provided equal to at least 
one-half of the child's daily 
food needs. 

(4) For children in the center 
o ve r tort h o urs , m ore tlian 
twelve h ours, two snacks and 
two meals shall be provided 
wliich are equal to at least 
tvjo-thirds of the child's 
daily food needs . 



SECTION .1000 



TRANSPORTATION 
STANDARDS 



.1001 SEAT RESTRAINTS 

(d) Each child under three 
years of age will shall be 
provided a child passenger 
restraint device appropriate for 
his/her size and age. Older 
children shall use a child 
restraint or seat belt 
appropriate for his/her size. 

(e) These restraint 
regulations do not apply to 
commercial vehicles or other 
veliicles not required by state 
or federal law to be equipped 
with seat belts, except that 
children under 02ie year of age 
rtcry s hall never be transported 
outside an appropriate infant 
restraint device in any vehicle 
ovmed or operated iind'';r the 
auspices of the day care center. 

.1003 SAFE PROCEDURES 



( 
es 

pi 
ch 
sh 



pn 
be 
th 

( 
sh 
us 
tr 
fi 
lo 
a 

ch 
vri 
ot 
pn 

( 
ye 
sc 
va 
mo 
nc3 
th 

IjH 
re 
ca 
pa 
No 
li 
fr 
re 
( 
mu 
ma 
No 
lo 
ve 



c) Eacli center shall 
tablish safe procedures for 
ck-up and delivery of 
ildrcn. These procedures wirlrl: 
all be communicated to 
rents, and a copy vriii shall 

posted in the center where 
ey can easily be seen. 

d) A first-aid kit vriii 
illl bo located in each vehicle 
ed on a regular basis to 
ansport cliildren. The 
rst-aid kit vrtii shall be 
cated in each veliicle used on 

regular basis to transport 
ildrcn. The first-aid kit 
a shall be firmly mounted or 
herv;ise secured if kept in the 
ssenger compartment . 
f) The driver shall be 18 
ars old or a duly licensed 
hool bus driver and have a 
lid driver's license with not 
re than 3 4 active points and 
conviction within the last 



roe years of Driving While 
pa ired ( DWI ) . Anyone v;ho 
gularly drives a vehicle 
rrying +2 ot mtrrc more than 12 
ssor.gers mrr^rt sha ll have a 
rth Carolina Class "B" 
cense, or comparable license 
om tlie state in which he/she 
sides . 

g) Each person in the vehicle 
3t be seated in the 
lufacturer ' s designated areas, 
child mtry sha ll ride in the 
2d carrying area or floor of a 
hide . 



SECTION .1200 - SANITATION 
STANDARDS FOR CENTERS 

.1201 SANITATION REQUIREMENTS 
Each day care center shall 
comply with specific sanitation 
requirements as provided below: 

( 1 ) Floors. All floors 

will shall be easily 
cleanable, and rriri-i shall be 
kept clean and in good 
repair . 

(2) V.'alls and Ceilings. 

The walls and ceilings of all 
rooms and areas will shall be 
kept clean and in good 
repair. All walls shall be 
easily cleanable. Walls in 
food service areas, diaper 
chaiiging areas and toilets 
w il l shall have nonabsorbent , 
washable surfaces to the 
highest level reached by 
splash or spray . 

(3) Lighting and Ventilation. 
All rooms and areas shall be 
well lighted by natural or 
artificial means which is 
effective under actual use 
c onditions . In no event w i ll 
shall tlie minimum required 
level of illumination exceed 
30 foot-candles on tasks. 



NORTH CAROLINA REGISTER 



287 



Vent ilcit ion v ? i 1 1 sha] 1 be 
provided and installed as 
icquirod Ijy tlie North 
Carolina State Building Code. 
Copies of the North Carolina 
State Building Code may be 
obtained from t)ic North 
Carolina Department of 
Insurance, P. 0. Box 26387, 
Raleigh, North Carolina 
27611. in I ci t c lie rnrr 



irrotr 

■ST' 



nriy- 



d e si g ned ven t ilation 

gi' isll ire prov id e d ■■ 

p mvisi o n sliall be 



A dequate p mvisi o n 
mtiti-c ±xr rrdirrirt mai t e up trirr 
•fTTcrm a st i i t a irfre l o c a t i o n t-o 
replace t^itrt v; hi c ] T -ire 

exhau st ed ir-cm ++re ki t c lren-r- 



X or ciTTxti 
opcra t e -d 
I ' jsi r denc e s , 



dtn' 



circ 



dome 



c-c-ir l e r s 
p rivat e 
st ic type 



v en t ila t ion rryst-cnrs s^rotrfrd hro 
c o nsi totrrtrd acceptable -i-f titc 
pe r forman c-e irs s a b i s f t ictory . 
T o il et rr-oiTTS rmxi infa n t nrc-r-s 



-VTiTit il a t-ett t^o 
trin? throi-Krh 

; c t i o nal a rc a^; 



tr hall te ncrii 
trn? otrt £ id'c 
VI indows or* 
having cios -z — st 
trf a-t I c ^^s t -r-S squa r e -rr 
err v. ' i t ii meeha rr i e al 

ven t ila t ion syst e ms ooriTply ing 
Trrtrh tire rcqui r cncn t-s o-f -tire 
Nor th Car o lii - .a Building Cod e 
C o unci -iir-r 
( 5 ) KartTrr Supply . Tire wa t er 
suppl -y ty lial fb- be -fTrom .m 
ap prove-Q source , be a dequa te 
tro mee t t+re r cqu irc ir .en t^ erf 
t"ne center and slial 1 tre x?x a 
safe , SAiiitar y quali t y . 

R unnin g v;a t c r tt nd cr pr essure 
t^il'iall be provided . 
Khen a pr iva te vfa tc r supp ly 
•is uscd -r -it- mtrst- be 



truc t cd -; 




con 
opcra t 



-m 
tiTC 1 cquirc iT , e n t-s 
B ivisi o n erf Ileal t li 
Be par bii i cnt e-f fhinan 
B ulle t in No-r 4?^ 
"h^^^^ en^HrH.-e-d "-Piro 
i H ' iva t e Watrer Gu pp l ics . " A 
sample cr£ vrtrtrcr- shall be 
colltjctcd by ttre sanita r ia n 
ana suDm ii: Tctu lo t ne 

1 ' ibo r a to i . y sec t i on e-f tire 



Divisi o n e^ Heaitrh S er v ices 
err othcrr approved labora t ory 
■foTr bacte r i o logical crraiy-rrd-r: 
at- least once a year . Ne 

Lackf l o v; connec t ions err 

cross — c onn e cti o ns wit I t art 
t ina p p ro r ed t va ter su p ply shall 
e. r is t . 

\'J.iter Supply. The water 

supply uqcd shall be located, 
constructed, maintained, and 
o perat e d in accordance wit li 
the Cormission for Health 
rules qovorninq 



Services ' 



vjater supplies. 
NCAC 10A .1700 



Copies of 1 
and 1 NCAC 



10D .0600 throucTh .2500 a s 
anendo d through April 1 , 1986 
m ay 1 )o obtained rom the 

■ Services , 
Hii rn a n 



D ivisi on of Health 

D epartme nt of 

Resources . F 



0^ B >x 2091 



Raleich . 



North 



Carolina 



27602-2091 



A 



water from 



s- Tiple of 

pr'vate or 



public non-community water 
supply serving a 



ay 



center shall he coll ';cted by 
the sanitarian and rubmitted 
a t le^st once a year to the 
laboratory section of the 
Department of Human I'.esources 
or other approved laborator y 
for bacter.'oloqical 



e.xnminat ion . 



No backflow 



connect ions 



cross-connections 



vith 



unapproved water supply shall 
exist . 

Hot water heating facilities 
shall be sufficient to meet 
the maxim.um expected 
requirements of the child day 
care center. 

Hot end cold water under 
pressure shall be easily 
accessible to all rooms where 
food is processed or handled, 
rooms in which utensils or 
equipment are vjashed, 
lavatories provided for use 
by staff, and other areas in 
which water is required for 
cleaning and sanitizing. 
( 7 ) Liq trie} Kastes . Aii s e viage 
arrd 1 iqui d v. ' as t es ohall be 
dis po a ed erf -in a public 
sewerage system errr -in ttre 
a bs e n c e tr£ a p ubli c s e w e rage 
syst e m ■ by a sanitary 
pr o cedu re app ro v e d by t+re 
sani t a - rian . Aii se i va ge arrd 
er ther i-irqtrird was te s "hall be 
d isposed erf se as rterb tre 
a public h e al t h 



L j quid VJastes . 



All sewage 



a nd other liquid wastes shall 
bo disposed of in a public 
scv;er system or, in the 
a bsence of a public sev)er 
system, by an rpproved. 
properly operating sanitary 
sewage system . 
(11) Storage. Rooms or spaces 
v;ill shall be provided for 
the storage of necessary 
equipment, furniture, toys, 
clothes, beds, cots, mats and 
supplies and shall be kept 
clean . 

All corrosive agents, 
insecticides, rodenticides , 
herbicides, bleaches, 

detergents, polishes, items 
containing petroleum 

products, any product which 
is under pressure in an 
aerosol dispensing can, and 
any substance which may be 



IBS 



NORTH CAROLINA REGISTER 



hazardous to a child if 
ingested. inhaled or handled 
(skin contact) shall bo 
stored in a locked storage 
room or locked cabinet . 
Medications iii u :a L shall be 
stored in a separate locked 
cabinet . Medications which 
require refrigeration nrcr^rt 
sliall be stored in a 
designated area for such 
storage in a refrigerator 
which is not accessible to 
children . 
(13) Cleaning and Sanitizing 
of Food Service Utensils and 
Equipment. All multi-use 
eating and drinking utensils 
mutrt -^hall be throughly 
cleaned and sanitized after 
each usage, and the 
facilities needed for 
washing. rinsing and 
sanitizing mus t shall be 
provided. The facilities for 
washing. rinsing and 
sanitizing multi-use eating 
and drinking utensils needed 
by child day care centers 
v?ill siiall depend upon the 
numbers and types of 



utensils 
consequently, 
determinations 
acceptability 
for v;.-.shing. 



an use; 

individual 

of the 

of facilities 

rinsing and 



sanitizing multi-use eating 
and drinking utensils mtrst 
shall be made by the 
sanitarian. If residential 
dishv/asjiers which do not 
provide a sanitizing cycle 
are used for washing and 
rinsing. facilities for 
sanitizing rrtrst- shall be 
provided. Sanitizing may be 
accomplished by any of 
several procedures: 
(c) other procedures 
equivalent to (a) and Cb) of 
this subdivision. The 
facilities for v.'ashing, 
rinsing and sanitizing 
multi-use eating and drinking 
utensilo, preferred in all 
cases and required where the 
number of utensils justifies 
them, consist of standard 
three- c o m poiTgrrb compartment 
sinks or dishv;ashing rrachines 
manufactured, installed and 
operated in accordance with 
the I'ational Sanitation 
Foundation Standards or 
equal . 

When necessary for the 
effective washing of pots, 
pans and vegetables, a 
t'.jo-compartment sink with 
drainboards on each end must 
K ]•! ? 1 1 bi provided. 
All kitchcnware and 
food-contact surfaces trr of 
equipment, exclusive of 



cooking surfaces of 
equipment, used in the 
preparation or serving of 
food or drinlc and all food 
storage utensils mtrs-b shall 
be thoroughly cleaned after 
each use . 

Cooking surfaces trr of 
equipment must be cleaned at 
least once each day. 
Non-food contact surfaces of 
equipment must be cleaned at 
such intervals as to keep 
tliem in a clean and sanitary 
condition . 

No polish or other substance 
containing cyanide or other 
poisonous material shall be 
used for the cleaning or 
polishing of eating or 
cooking utensils. 
(16) Staff Members. All staff 
members mrst- shall wear clean 
outer garments. maintain a 
high degree of personal 
cleanliness and conform to 
hygienic practices while on 
duty . They mrrst- sliall wash 
their hands tlioroughly in an 
approved handwashing facility 
before staring work, after 
diaper changing activity, and 
otlierv/ise as often as may be 
necessary to remove soil and 
contamination. No staff 
member sliall resume work 
after visiting the toilet 
room without first washing 
his/lier hands. Hair nets, 
headbands, or caps mtrs-t shall 
be used by staff members 
engaged in the preparation of 
food to keep hair from 
falling in food and on 
food-contact surfaces. Staff 
ncmbers sliall not use tobacco 
in any form vjhile engaged in 
food preparation or while 
v.'orking in equipment and 
utensil-washing. food 

preparation areas, or while 
feeding children . 
No person v;h.ile affec te d 
infected with any disease in 
a communicable form, or while 
a carrier of such a disease, 
or while afflicted with 
boils, infected w o und, 
wounds , sores, or an acute 
respiratory infection sliall 
work in any capacity in vjhich 
there is a likelihood of such 
person contaminating food or 
food-contact surfaces with 
pathogenic organisms, or 
transmitting disease to other 
individuals; and no person 
known or suspected of being 
affected with any such 
disease or condition shall be 
employed in r.uch area or 
capacity. If the operator 
has reason to suspect that 
any person has contracted any 



NORTH CAROLINA REGISTER 



289 



disease in a communicable 
form or has become a carrier 
of such disease, he/slio must 
notify the local liealth 
department inmediately . 

SECTION .1300 - BUILDING CODE 
REQUIREMENTS FOR DAY CARE 
CENTERS 

. 1302 BUILDING CODE 

REQUIREiiENTS 

FOR DAY CARE 

CENTERS 
For the purpose of carrying 
out the provision of G.S. 
110-91(4), the North Carolina 
Building Code standards for day 
care centers (more than 15 
children) developed by the 
Building Code Council are hereby 
adopted by reference by the 
Child Day Care Commission. A 
copy of the North Carolina 
Building Code standards is on 
file at the Child Day Care 
Section, Division of Facility 
Services, 70 1 Barbour Drive. 
J'Jaleigh, North Carolina, St^O^-t 
27603 , and will be available for 
public inspection during regular 
business hours. 



childr e n 



it ions 



about 
of tibuse 



SECTION 



1400 - SPACE 

REQUIREMENTS 



. 1403 SWIMMING POOLS 

(a) When children participate 
in swimming activities in or 
near a swimming pool or other 
body of water deeper than 18 
inches , a person who has earned 
a Red Cross Advanced Life Saving 
or Water Safety Instructor 
certificate shall be present to 
supervise the swimming area and 
.:;hall not be counted in the 
staff-child ratio. 

SECTION .1900 - SPECIAL 

PROCEDURES CONCERNING 
ABUSE/NEGLECT IN DAY CARE 

.1902 UNANNOUNCED VISITS 
If the county department 
of social services determines 
the allegation warrants 
investigation according to G.S. 
7A-544, unannounced visits shall 
be made by a representative of 
the section to the day care 
center or home within tlie time 
;5eriods established by G.S. 
1 10-105 (a) (3) . 

(1) The purpose of the first 
unannounced visit is to 
investigate whether tlie 
alleged incident did, in 
fact, occur at the center or 
home and to identify who was 
involved . 

(2 ) TItc Trtrtr'c-ion-'-s 
ri'VT: v?ill not 

r-.7 t+rc tri iild OT 



n cg l i: 
+5^- 12 
subs 
shal 
chil 
repr 
depe 
the 
info 
coun 
serv 
sour 



1 The purpose of 
equent visit (s) 
i be determined by 
d abuse/neglect 
csentative and 
ndent upon the result 

first visit 
rmation received from 
ty department of so 
ices and other rele 
ces . 



the 

or- 



wxli 
the 

unit 
is 

s of 
and 
the 

cial 

vant 



.1903 

(a) 

sha 



the 
sta 
who 
the 
law 
oth 
as 
inv 
use 
(b) 



INVESTIGATION PROCEDURES 
The investigation will 
11 include interviews with 
registrant, operator, 
ff, parents, or any adult 
has information regarding 
allegation. Reports from 
enforcement officers and 
er professionals, as well 
pictures and other 
estigative tools, may be 
d, as appropriate. 
The section' s 

shall 



representative 



not 



intervicv; 


the child 


or 


children 


about 


the 


alleqat ions 


of abuse 


or 



neglect . 

■f-fcr)- ( c ) The section w ill 

shall share information 
related to investigations 
with departments of social 
services, as appropriate. 
However, any information 
subject to confidentiality 
lavjs or regulations shall be 
handled so as to preserve the 
confidential nature of the 
material . 

( c ) ( d ) At any time during the 
investigation, the 

representative of the section 
may conduct an evaluation for 
compliance with all licensing 
requirements . 

-(tW- (e ) The section shall make 
a v;ritten report to the 
licensee/registrant f o ll o vfing 
■bho co i i i pletion o-f tl ' i e 

imr es t igat i o n and the county 
departTiont of social services 



wlien 


the 


investigation 


is 


compl 


eted . 


The section 


mav 


also 


report to 


law 


enforcement 


of f ice-s 


and 


other 


professionals that 


v;ere 


invol 


vod 


in 


the 



invest igat ion . 



secti 
furth 
if an 



sliall 



This report 
explain the 



on's findings and what 
cr action will be taken, 

y- 



SECTION .2000 - RULE MAKING AND 
CONTESTED CASE PROCEDURES 

.2001 PETITIONS FOR RULEMAKING 
(a) Any person wishing to 



290 



NORTH CAROLINA REGISTER 



request the adoption, 
amendment, or repeal of a 
rule made by the Child Day 
Care Commission (hereinafter 
referred to as the 
Commission) shall make his/ 
her request in a written 
petition to: 

Administrative Procedures 

Coordinator 

Divisio.i of Facility Services 

1 OS; L ur I JLC c UOX TiLzrtrtr 

7 01 Barbour Drive 

Raleigh, North Carolina 

27605 

27603 

(c) The division director 

or his/her disignee shall 
present the petition plus any 
additional information or 
recommendations deemed relevant 
to tlie Cornmission to determine 
whether tho public interest will 
be served by granting the 
petition . 

(d) The Commission shall 
render a decision as to whether 
to deny or approve the petition 
at its next scheduled meeting. 
v;hich may be no later tlian 120 
days after submission of the 
petition. If the decision is to 
deny the petition, the division 
director or his/ her designee 
shall notify the petitioner, in 
vjriting, seating the reasons for 
the denial. If the decision is 
to approve the petition. the 
Commission shall initiate a 
rulemaking proceeding by issuing 
a rulemaking notice, as provided 
in these rules. 

.2002 RULEMAKING PROCEDURES 
(a) The i'ulemal:ing procedures 
for the Secretary of the 
Department of Human Resources 
adopted February 1, 1976. as 
amended through January 1. 1986. 
and codified in 10 NCAC 1 B 
.0102 through .0107 are hereby 
adopted by reference to apply to 
the actions of the Comriission. 
with the following 
modifications : 

(1) Correspondence related 

to the Commission's 

rulemaking actions sliall be 

submit ':cd to: 

Administrative Procedures 

Coordinator 

Ch i^xxi &ZXY Care Sect ion 

Division of Facility 

Services 

Post €hfficc &a^ 1220 

7 01 Barbour Dri\'e 

Raleigh, North Carolina 

£^605 

27505 

.2003 DECLARATORY RULINGS 
(a) The Commission shall have 
the power to ma];e declaratory 
rulings. All requests for 



declaratory rulings shall be by 
written petition and shall be 
submitted to : 

Child Day Care Section 

Divison of Facility Services 

P^ e-r B-crx 12200 

701 Barbour Drive 

Raleigh, North Carolina 

a7-6fi5 

27605 

(b) Every request for a 

declaratory ruling must include 

tlie following information: 

( 1 ) tlie name and address of 
the petitioner; 

(2) the statute or rule to 
vjhich the petition relates; 

(3) a concise statement 

of the manner in which the 
petitioner is aggrieved by 
tlie rule or statute or its 
potential application to 
him/ her . and 

(4) the consequences of a 
failure to issue a 
declaratory ruling. 

.2004 CONTESTED CASE 
PROCEDURES 

(a) The contested case 
procedures adopted by the 
Secretary of the Department of 
Human Resources on February 1 , 
1976, as amended through January 
1. 1936, and codified in 10 NCAC 
1 B .0200 are hereby adopted by 
reference to apply to the 
Division of Facility Services. 
Child Day Care Section. In 
applying these rules, 
correspondence related to 
contested cases shall be 
addressed to : 

Administrative Procedures 
Coordinator 

Division of Facility Services 

701 Barbour Drive 
Raleigh, North Carolina 



2760' 



SECTION .2100 



CHURCH DAY CARE 
CENTER STANDARDS 



.2101 CENTERS OPERATING UNDER 
G.S. 110-106 

(c) The Section sliall notify 
the operator in writing as to 
wiietlior the center complies or 
does not comply with the 
standards. The Section may give 
the center time to achieve 
co.-^ipliance , in addition to the 
30 days allovjcd by G.S. 
1 10-106(b)( 1) , for the reasons 
stated in .0401 (1 ) ( 4 -)- (a) . 



SECTION .2200 



CIVIL PENALTIES 



.2201 SCOPE AND PURPOSE 
Any operator /'re c ; i-y fc ran t wlio 
violates any provinion of 

ArLiclc 7 of Chapter 110 of tlie 



NORTH CAROLINA REGISTER 



291 



Hcneral Statutes or of thir; 
subchapter who fails to ta]ce 
corrective action after being 
provided adequate written notice 
hy the section shall bo 
considered to be in willful 
violation of the licensing law 
rnd a civil penalty n;ay be 
levied against the operator by 
the Secretary or his /her 
designee pursuant to rules and 
schedules of penalties adopted 
by the Conmission . 

.2204 RIGHT TO A HEARING 

Any operator contesting 
a penalty is entitled to an 
.-idministrat ivc hearing and 
judicial review in accordance 
i.'ith Chapter '\-ErOA 150B of the 
General Statutes. the 
Administrative Procedures Act. 



SECTION .2300 



FORMS 



SECTION .0500 - CAREGIVING 
REQUIREMENTS FOR 
CENTERS 

.0505 DEVELOPMENTAL 
DAY CENTERS 
Child day care centers 
whicli meet the criteria for 
developmental day centers, as 
defined in 10 KCAC 1 8M .0701 
(contained in APSM 35-1, 
Standards for Area Prog;.'ams and 
Tlioir Contract Agencies, 
published by the Division of 
Mental Health, Mental 
Retardation and Substance Abuse 
Services), shall be determined 
in compliance with the 
provisions of Rules .0502 
through .0504 of this Section by 
complying with the requirements 
for activities for developmental 
day centers set forth in 10 NCAC 
. 18M .0707, .0708 and .0713. 



.2316 WHERE TO OBTAIN FORMS 

Sample copies of the 
forir.s required by statute or 
rules of this agency may be 
obtained by writing to the 
section, PotiH: 0f^-xctr Bxrx 1320 9-r 
Tv-aiirigh-r NottHi etrro-lina, 27605. 
at the address c t ivon in .0102(1) 
of this Subchapter. 

Notice is hereby given in 
accordance with 6.S. 150B-12 
that the Child Day Care 
Commission intends to adopt 
regulation cited as 10 NCAC 3U 
.0505. Tiic purpose of the 
proposed regulation is to allow 
centers serving handicapped 
children to use Mental Hcaltli 
Certification standards about 
itirogram activities for 
licensure . 

The proposed effective date of 
chis action is Jan.uary 1, 1987. 

Statutory Autliority: G.S. 
110-91; 143B-168.3. 

The public hearing will be 
conducted at 10:00 a.m. on 
September 18, 1986, at Mission 
Valley Inn, 2110 Avent Ferry 
Road, Raleigh, N.C. 

Comment Procedures: Written 
comments and requests for time 
to speak at tlie public hearing 
should be addressed to: Lucy H. 
Bode, Chairperson, Child Day 
(^are Commission, 701 Barbour 
Drive, Raleigh, N.C. 27603, and 
be received on or before 
September 1 2 . 



SUBCHAPTER 3U - CHILD DAY 
CARE STANDARDS 



Notice is 
accordance 
that the 
Commission, 



hereby given in 

with G.S. 150B-12 

Child Day Care 

intends to amend 



regulations cited as 10 NCAC 3U 
. 1701-.1703; .1705 and .1716. 

The purpose of the proposed 
regulations is procedui'es for 
state registration of family day 
care homes . 

The proposed effective date of 
this action is January 1, 1987. 



Statutory 
1 10-86(4); 
143B-168.3. 



Authority: G.S. 
1 10-88(3); 



The public hearing will be 
conducted at 10:00 a.m. on 
September 18, 1986 at the 
Mission Valley Inn, 2110 Avent 
Ferry Road, Raleigh, N. C. 

Comment Procedures: Written 
comments and requests for time 
to speak at the public hearing 
should be addessed to: Lucy H. 
Bode, Chairperson, Child Day 
CareCommission, 701 Barbour 
Drive, Raleigh, N. C. 27603, and 
be received on or before 
September 1 2 . 

.1701 GENERAL PROVISIONS 
RELATED TO REGISTR/.TION 

(a) All child day care homes 
as defined by G. S. 110-86(4) 
and Rule .0102 -ffr^ 191 of this 
Subcliapter shall reqi"-.ter a nd 
comply with the standards for 
registration set forth in this 
Section . 

(b) Religious-sponsored day 
care homes vjhich do not have to 
register pursuant to G. S. 
110-106.1 are subject to and 



292 



NORTH CAROLINA REGISTER 



must comply with all standards 
of this Section. 

(c ) 7h^ Gl iild BTry 6 ar e Gec t i tm 
mty p c r iudicall y virsrrt tirtd 
■i nspect - jrli d a y c a i- c li o nc s txj 
■—rrstnre ccr. iplinnce with fftrr-th 
6 jr o lina G en e ral Sttrtirttj^s and 
tiiose vu-.cs and in:?-^il at ions 
ad opte d ptir suan t t h e ret o . 

( 1 ) A repre s e ntati ve of the 
Sect io-T Siiaxx conduct art 
a nn o unc e d vioi t pr i o r to 
initia l issuance and r e n e wal 

prospe ct i ve trr c u rrc n t 

r cgis trtnrb w ill fcre no t if ircxi 
■jm atlr^.uce about tht? visit . 
T^his K i.i'i^ doc s nc^c apply to 
tht; -iiT v ' estiga t ion onf h om es 
tita-b ^rrt; opera t in g wit h o ut 
being r c ijis t ered im 

V lolat ion ox trho lav7 . 
-(-2-)- At irho fa- eginning of 

each fiscal year , trlrc 

Gcc t-fo-.T slTall prepar e a 
vj r 1 'c t e ."t pi an cxpl am mg tne 
guidelines for irialcmy 

rout in -t unannounced 

conrplri 3rrco v is i -bs to 

rogirst ::r e d day cam h o mes . 
The plan sli all tre da te d and 
sign e d fay tire s e c t iO it c hie f 
and r:uall iro iccpt -in a 
c o nf i d' Jiitial file fay the 
s e c t io n chief . 

( d ) Whon a day care home 
e xis t-jT- -chc car e giver' s own 
preschool — vi^cd children t-hall bo 
c oun txrd i.t tire r- .aximum of five 
c hildren nlto re c e i ve care d u r ing 
otrhor thart af tur — scli o ol h o urs . 

■(-ir> T^ho ca re giver ' s own 
scho o l agc 'i ci-.rrlxi ren aro not 
co unted ir. d et erminx iTg if a day 
xraro homo o xists . 

(c) When a day caro 
home exists, all proschool-aqed 
children s lall be counted in the 



registered capacitv. 



This 



includes the caregiver's ov;n 
preschool-Tged children. 
The caregiver's ov;n 



[d) 

school-aqc d 



children 



shall 



day care homo shall be 
operated at the location 
address of tliat registered 
day care home . 
(2) Tlic applicant shall 

list each location address 

where the day care home v;ill 

operate . 

-tW- A ropro^sont-ai-i-vo of tire 

sec t i o n sfaaii r e vie w e a c h 

appl i cat ion to assuirc tirat tho 

app^ leant coinpl ics witli all 

p e rti n e n t re qui re r. i cntns-r- if tfao 

rt docs not ootrr ply , t h e 

i-c p rcsentat iv c siraii 

contact the appl ic Jint to expl am 

what nTttrrfc bo tlo-re to achi e ve 

co mplianc e . TItc appli c an t -irs 

r e o p ons i b 1 c for w^nfan'i 1 1 1 m g any 

ad d-it i o nal infc rm a trion n e eded to 

document compliance . 

( c ) A €ort i f i c ate of 
Rog is tr a t i o n sli al l fao issu e d to 
oaoji im di v id u al wlto appli e s for 
rog 1st rat ion and i-Hio "irs deemed 
by t-fao section ±ro co m ply with 
re quiremen t s for rcg-itrt ra t ion . 
A p e r s o'.'r irs n ot cohsiderc ti to fao 
r e g is t e r ed until ttro sec t ion 
d et ermin e s tiTot lie/ she c o mpl ics 
aii appli c abl e 

a registrant operates 

care home at more than one 

location address by cooperative 
arranqcment among two or more 




arra n gement 
fpT.il ie:; 



amon g 
the 



following 



procedures shall apply: 

_( 1 J One parent v;hoso home 



is used 



location 



address shall be designated 
the coordinating parent and 



shall 



co-s ign 



the 



appl icat ion 



v;ith 



the 



req- i strant . 
(2) The coordinating parent 
i.s responsible for knovjing 



the current location addres s 
at all times and shall 
provide the information to 
tlie section upon request. 
(c) Upon receipt of an 
a c _c_e_Rt_a ble appl icat ion ; the 



section shall 



include sc lool-aged children vlHo 

reside at the location of th e permission to operate 



written 



on 



day care home, and thev shall temporary basi; 
not be counted to determjne if a 



A person is 



not 



able to operate legally 



day care home exists, nor shall until he/she has received that 



tlicv 



be 



counted 



the 



registered capacitv. 

.1702 INITIAL REGISTRATION 

(a) Anyoi ro who wirsfaos 
"to re gis tor Any person who plans 
to operate a day care home other 
than those homes identified in 



Rule 



1701 



' b ) shall complete a 
Day Care Home Application for 
Registration as described in 
Rule .2313. The applicant shall 
submit tlic completed 
application, v;hich complies vjith 
the following, to the section: 
(1) Only one registered 



permission . 

(d) A representative of the 
s ection shall make an announced 
vi sit to each home operating on 
a temporary basis. The purpose 
of this visit shall be to 
determine complia nee with the 
standards. to offci' technical 
assistance when needed, and to 
provide information abovit local 
resources . 



( 1 ) Tf the home is foun d 

to b e in compl ia nce with the 
ai:i plic nb le re gti i vc ment s of 
G.S. 110 and this Section, a 



NORTH CAROLINA REGISTER 



29:: 



Certificate 


of Reqistrat ion 


shall bo ir,-. 


ued . 


(2) Tf th- ho 


r.ic is not 


in connlin-i 


-e but .has the 


potential to comolv, tlie 


section ropi' 


osentative shall 


establish vrith the ooerator 


a reasonable 


time period for 


the home t 


o achieve full 


compliance . 


If the section 


represontat i 


ve determines 


that the 


liome is in 


co;np] ianco 


witliin the 


cstabl ir:hcd 


tine period, a 


Cert if d ca to 


of Reqistrat ion 


shall bo isr 


nc-d. 


(3) If the lione is rot in 


conpl ianco , 


cannot 


potentially 


complv, or fails 


to complv 


vjithin the 


appropriate 


time, the 


section sh 


all deny the 


application 


and terminate 


the te-TDorarv permission to 



operate . 
-fd-)- ( e ) Use of the certificate 
is limited to the following 
conditions : 

(1) A Certificate of 
Registration remins yalid 
for a period of tv;o years 
unless touTninatcd, revoked^ 
or siispended . 

(2) The Certificate of 
Registration cannot bo 
bought, sold, or transferred 
from one individual to 
another . 

(3) The Certificate of 
Registration is valid only 
for the location 
address/addresses listed on 
it . 

(4) The Certificate of 
Registration is the property 
of the State of Nortli 
Carolina. It must bo 
returned to the section in 
the event of tcrminatioii or 
revocation of registration. 

(5) The Certificate of 
Registration sliall be 
•p-roT.riTTCirriy displ: iy-crd tro 
thirt irt csn be c a -ail-y s^cn 
ir\' parc rt-trs-r available and 
shall be s hov;n to each 
child ' r pare nt or g u a rdiaii 
vjhon the child is enrolled . 

(f) A registrant is 
responsible for notifying the 
section whenever a change occurs 
'jhich affects the informa tion 
shown on the Certificate of 
'Registration . 

.1703 RENEWAL OF REGISTRATION 

(a) Each registrant 
irtu-s-b ap p l y ±xt rc n cv? lii ~ / -h-c-r 
r-crg-is t raion ov c ry -crro y^nrrs-r 
u-s-irrg fox ms de ve l o p ed t.nxi 

-.; uppd-TGTi by ±}to sec t ion . 

-ac c or d ing t-o -th-c -fxrirtorrtn-g 
-Tc-htrd ul c : sliall apply for 



r enev;al of registration every 

two years . 

( 1 ) The; se c t i o n v. ' ill send 

e a c h r-eg istran 'b t-Irc f o rm s 
ntrcdc-d -to tspp-ly -foT 

a p p r o ■ • ; i m c bclry 9-& titn.-^ bcf or t; 
■tfrc re gia t-r-at-roTt c?; pires . 
(1) The section shall notify 
the registrant of the nee d 
to renev; bv sending him/her 
the r.ppropriate forns. v;hich 

sh all i nclude a self-check 

g uest jonn a ire, not less than 
6 d: vr' from tlie cpi r ation 



late 



or 



the 



current 



Certificate of Rcgi r :trat ion . 
( 2 ) Pit:; re g istran t ntrs-t 

r-e+wrn -t-rrc co m ple t-jd -f orms 
+T? ijrrs se ct ion rro irct-crr -th-arr 



3-& thry^ bef ore 

regis -irr-at-i-ort ':; xpii ut . . 
-the com p l crbeij f o rm -- tms 
rccc i -yxrd trs prusci- rbc d , 
s ect i ort v;ill notinfy 
r e gis -brarrt- thtrt ke trhe 
&& d ays to ■sttbiri-t 



■ttre 

a 

not- 
tlie 
•ttte 
has 

re quired f or iiis or- t\7 contact 

trlre STD-c-t-ioTt tro crri: 1 a i n tiTe 

dela y— -tf t it e r j irs rra 

?iTtrc from the 

rrsnt-,- t he se'ct iort 

shall inri t iate ircriirin a t i on 

pr occcd j-i'igs . 

( 2) Tlie registrant sliall 

re tu rn the complet '- 'd forms 
to the section not less than 



30 



days 



prior 



to 



the 



expiration date of 



the 



current 



Certificate 



of 



Registrat ion . 
(3) Representatives of the 
section shall make a nnounced 
visj ts to a 



and f 
rando 



chedulod 



selection 



of 



registered homes prior to 
renewal. in accordance with 



the 



p ursu 



Oct ion's plan developed 
ant to G.S. 1 iO-105. 1 . 



Tho purpose of these visits 

shall be to determine 

c ontinued cor?pl ia n co vjith 



the 



registration 



(b) 

dote 
rogi 



rcguirements . 



co.mp 



Regi 
rrs 
c o r. p 
year 
(c) 
rcne 
grou 
regi 



When the section 
rmines that the regist r an t 
s tored hone continues to 
v.'ith rtrg: Ls t ra t i o n 
e requirements, air 

Certificate 
ion , yai-iti fcrr ?rs 



ly 

icabl 



;trat 

■H-ra 

lian c 

sh 

Fa 

wal o 

nds 

strat 




rrtrtr -to e x c ee d 
all be issued . 
ilure to apply for 
f registration shall be 
for termination of 
ion . 



17C5 HEALTH STANDARDS FOR 

A-fiPt7T CANTG/RCGK >TR:\)ffS 
DAY CARE HOME OPERATORS 



( a ) tTTcht TrT 



itrairfc TTrU"::rb 



294 



NORTH CAROLINA REGISTER 



c b t ain a wr i tt en s t at e n i en t o-r 
m edi c al txain-rrrnt-ioTt rep o rt , 

Tg i r jne tt by a 1 iccns e d physi c ia n 
trr an auth o rized hcalt l i 

p i ' of c s:3i o n rr3r-r Tittrt ^tat c' im j ii l or 
r- cp ort Tira-rrt i ndi c a trc -tlra-t t^rc 
appi-rcarrt is- p l - iysi c jr J-lTT arrd 
CTVKririr onally -fit- to car-e -for 
cfrirtdnm-r Each appli -c-sntr imrs-b 

als o o b t ai -n v fri tt cn p roof t+rat 
hx-' /^li e -i— free erf ac t ive 
t ubcrcul oisjs si ' iall bt? cm fi l e im 
t he liome . 

■Hr)- Eaxrh recji^ t-rairt mtrst 
ai ' mually o btai rt a w rit t en 

s ta bc mc ii t trr rao d -i- cal o .taniina t ion 
report as d es cr ibed -in Prrrag-rarrii 
■( a ) err bcT'^olie nrtrtrb complete t+re 
htrai-bh qtrc ^rt-xcrm-rtrtn? appr jv c d by 
■Htc Cliild Bay Care €rc mnission . 
This st-tt-erccrrt rc p or Irr err 

q u e sti o nna xre mtitrt be on fil e im 



the 



o pertor 



to 



achieve 



the 



rroo ir 
has had 



t-hatr thcr 
an annual 



r e gis t rant 
t es t ■shxrrri-.rg ttert lic/'shc irs free 
trf ac tive t uber c ul o sis mtrs-fc aiso 
be on file in tho hojirc^r 

(a) Each day care home 
operator shall complete and keep 
on file F health quest i onnairo 
which attcr^ts to the operator's 
pliysical - nd emo t ional ability 

to care for children. Tiio 

section m .y require a written 
stateri^ent or medical exair . inat ion 
report signed hv a licensed 
physician or otlier authorized 



health p 
reason 



r.g fessional if t i iere is 
to believe that the 



caregiver ' 



health may adversely 



affect his/her care 



the 



children . 

(b) Each day care home 
operator shall complete the 
health gmstionnaire initially 
and prior I o each renewal . 

(c) Each operator shall 
obtain written proof that he/she 
is free of active tuberculosis 
prior to initial registration 



and 



each 



renevjal 



of 



registration ■ 

.1716 FAILURE TO MEET AND 
MAINTAIN REQUIREMENTS 

a t+rc ■sec-lrixm tkrtxrrni incs 
tl'iab a rex'^istrant ^r* il s tx? meet 
arrd ■ov rtadi'rira-in com p lianc g 

rcgist r a t i onr- tire 

deny ■ :stn; pend ■ 
TtrvxAis Htc registra t i o n aft e r a 
heariitg at; p rovic krd -rrr Sec t ion 
-T^e-GQ o-f -Hrirs Sithchapt-cr-r in 
addi b i o ur a c ivil pcmrrl-irj" may he 
i n pos-ctl a- c o r Jii Tg to S e c t ion 
■r£<ym oif f-.i^ Snbt: 
(a) If tiio sect ion 




determines 


that 


a day 


care 


home 


operator 


fails 


to 


meet 


and 


main bain 


compl 


iance 


with 


the 


requiremen 


s for rcoistra 


t ion . 


the soct.i 


on may es 


cabli 


sh a 


reasonable 


time 


oeriod 


to 


allow 



com pl ia n ce . 

( b) If the operator fails 
to ac hi eve com pl iance within the 
ostablislied time periods the 



;ect ion 



terminate , 



may 



deny , 



revolce 



suspend , 



the 



•■gi strat ion . 



The o perator ma y 



a ppeal any such a ct ion pursuant 
to provisions of G.S. 1 SOB . 



Notice is 
accordance 
that tlie 
Commission 



Iicrcby given in 
with G.S. 150B-12 

Child Day Cai'c 
intends to repeal 



regulations cited as 10 NCAC 3U 
.1704; .1706 - .1715. The 
purpose of the proposed 
regulations is for registration 
standards for day care homes. 

Tiie proposed effective date of 
this action is January 1, 1987. 

Statutory Authority: G.S. 
110-88; 110-101; 143B-168.3. 

The public hearing will be 
conducted at 10:00 a.m. on 
September 18. 1986, at Mission 
Valley Inn, 2110 Avent Ferry 
Road, Raleigh, M.C. 

Comment Procedures: Written 
comments and requests for time 
to speak at tlic public hearing 
should be addressed to: Lucy 
H. Bode, Cliairperson, Child Day 
Care Commission, 701 Barbour 
Drive, Raleigh, N.C. 27603, and 
be received on or before 
September 1 2 . 



1704 CHANGES AFFECTING 

REGISTRATION (REPEALED) 

1706 MEDICAL AND IMMUNIZATION 
REPORTS FOR CHILDREN 
(REPEALED) 

1707 CHILD'S APPLICATION 

FOR ENROLLMENT (REPEALED) 

1708 EMERGENCY CARE 
PROCEDURES (REPEALED) 

1709 NUTRITION (REPEALED) 

1710 ADMINISTERING 
MEDICATIONS (REPEALED) 

171 1 DISCIPLINE POLICY 
(REPEALED) 

1712 GENERAL HEALTH 
PROVISIONS (REPEALED) 

1713 SAFE ENVIRONMENT 
(REPEALED) 

1714 SAFE TRANSPORTATION 
PROCEDURES (REPEALED) 

1715 SANITATION STANDARDS 



NORTH CAROLINA REGISTER 



295 



(REPEALED) 

Notice in ficrcby gi\-on in 
accordance with G . S . 150B-12 
that the Child Day Care 
Commission intends to adopt 
regulation cited as 10 NCAC 3U 
.1717. 

The purpose of the proposed 
regulation is: Standards for 
registration of day care hones. 

The proposed effective date of 
this action is January 1, 1987. 

Statutory Authority: G.S. 
110-83(3); 110-101; 143B-168.3. 

The public hearing will be 
conducted at 10:00 a.m., 
September 18, 1986 at Mission 
Valley Inn, 2110 Avent Ferry 
;ioad, Raleigh, K. C. 

Comment Procedures : Written 
comments and requests for time 
to speak at the public licaring 
•iliouid be addressed to: Lucy H. 
ilode, Chairperson, Child Day 
Care Commission, 701 Barbour 
Drive, Raleigh, !,' . C. 27603, and 
be received en or before 
September 12. 

.1717 HEALTH: SAFETY AND 

SANITATION STANDARDS 
(a) Each day care home 
shall comply witli the following 
standards in order to maintain a 
safe, healthy and sanitary 
environment for children: 
( 1 ) To assure a healthy 

environment, the operator 
shall: 

(A) have on file, for eacli 
child wlio attends on a 
regular basis, a health 
and emergency information 
form completed and signed 
by the child's parents or 
guardian. The completed 
form must be on file on 
the first day the child 
attends . A recommended 
form is available from the 
section. However, the 
operator may use another 
form provided tliat form 
includes the following 
information : 

(i) the child's name, 
address, and date of 
birth; 

(ii) the names of 
individuals to whom the 
child mry be released; 
(iii) the general status 
of the child's health; 
( iv ) any allergies 
and/or restrictions on 
the child's 

participation in 

activities with specific 



instructions from the 
child's parent or 
physician ; 

(v) the names and 
phone numbers of persons 
to be contacted in an 
emergency situation; 
(vi) the name and 
plione number of the 
child's physician and 
preferred hospital; 
(vii) authorization for 
the operator to 
administer specified 
medication according to 
the parent's 

instructions, if the 
parent so desires; 
(viii) authorization for 
the operator to seek 
emergency medical care 
in the parent's absence. 

(B) serve nutritious meals 
and snacks appropriate in 
amount and type of foods 
served for the ages of the 
children in care. 

(C) provide frequent 
opportunities for outdoor 
play or fresh air. 

(D) provide adequate space 
to rest comfortably. 

(E) bo able to recognize 
symptoms of childhood 
illnesses . 

(F) provide a quiet, 
separate area which can be 
easily supervised for 
cliildren too sick to 
remain with other 
children . 

(G) visually supervise all 
children v;ho are awake. 
The operator must be able 
to respond to the children 
immediately . 

(H) be able to provide 
basic first aid. 
(2) To assure each child's 
health and well-being, no 
child shall be subjected to 
any form of corporal 
punishment by the day care 
home operator, substitute 
caregiver, or any other 
person in the home, whether 
or not these persons reside 
in the home . 

(A) No child shall be 
handled roughly in any 
way, including shaking, 
pushing, shoving, 
pinching, slapping, 
biting, kicking, or 
spanking . 

(B) a'o cliild shall ever 

be placed in a locked 
room, closet, or box. 

(C) No discipline shall 
ever be delegated to 
another child. 

(D) Discipline shall in 

no way be related to food, 
rest or toileting: 



296 



NORTH CAROLINA REGISTER 



(i) No food shall be 
withheld, or given, as a 
means of discipline, 
(ii) No child shall ever 
be disciplined for 
laoses in toilet 
training . 
(iii) No child shall ever 
be disciplined for not 
sleeping during rest 
period . 
(3) To assure a safe 

environment , tlio home 
operator shall : 
(A) kjop all areas used by 
the children indoors and 
outdoors reasonably clean 
and orderly and free of 
items which are 
potei'.tially hazardous to 
chil Iren . 
(3) safely store equipment 
and supplies such as 
lavjnnowers, power tools, 
nails , etc . . 

(C) securely anchor outdoor 
stationary play equipment. 

(D) securely mount electric 
fans out of the roach of 
cliildrcn or have a mesh 
guard on each fan. 

(E) cover a] 1 electrical 
outl:-ts not in use. 

(F) separate firearms and 
ammunition and store botli 
in ."-reas inaccessible to 
cliildren . 

(G) k-"'ep items used for 
starting fires, such as 
matclics and lighters, out 
of t!ie children's reach. 

(H) keep all medicines 

in locked storage or in a 
place completely 

inaccessible to children. 

(I) keep hazardous cleaning 
supplies and other 
substances out of reach 
when preschool-age 

children are in care. 

(J) keep first-aid supplies 
in a place easily 
accessible to the 
operator . 

(Kl Iceop the equipment and 
toys in good repair and 
appropriate for the ages 
of ciiildren in care . 

(L) hive a working 

telee'ione within close 
proximity of tlie day care 
home . Emergency phone 
numbers shall be readily 
available . 

(M) have access to a means 
of transportation that is 
always available for 
emergency situations. 

(N) hive solid, safe and 
railed stairs and steps if 
these are used by the 
children. Indoor stairs 
with more than tvjo steps 
shall be giiarded if any 



children in care arc two 
years of age or younger. 

(0) construct, maintain and 
use swimming pools Cwith 
vjater deeper" than 12 
inclics) or v.'ading pools on 
the premises in a manner 
vjliich v;ill safeguard the 
lives and health of the 
children . 

(P) enclose bclov;-the- 

ground swimming pools by 
a fence not less than 5 
feet high to prevent 
chance access by children. 
The E'.jimming pool shall be 
separate from the play 
area . 

(Q) complete a form which 
explains the operator's 
procedures in emergency 
situations. The form 
shall be supplied by tlie 
section . 

(R) practice fire drill 

procedures with the 
children at least monthly. 

(4) To assure tlie safety 

of ciiildren v.'henover they 
are transported, tlie 
operator, or any other 
transportation provider, 
shall: 

(A) have written permission 
from a parent or guardian 
to transnort his/her 
child. 

(B) comply with all 
applicable state and 
federal lavjs and 
regulations concerning the 
transortation of 
passengers. All children 
regardless of ago or 
location in the vehicle 
sliall be restrained by 
individual scat belts or 
child restraint devices. 

(C) have a valid driver's 
license issued by the 
Division of Motor 
Vehicles, not including a 
limited permit. 

(D) assure that each child 
is seated in a 
manufacturer's designated 
area . 

(E) never leave children 

in a vehicle unattended by 
an adult . 

(F) have emergency and 
identification information 
about each child in the 
vehicle wlienover children 
arc being transported. 

(5) To assure a sanitary 
environment, the operator 
shall: 

(A) have a well or water 
system that complies vjith 
the require.nents of the 
local health department 
and the Division of Health 



I.'CRTH CAROLINA REGISTER 



297 



Services, Department of 
Human Rcsourcor;. 

(B) have sanibary toilet, 
diaper changing and 
handv.'ashii-g facilities. 

(C) place r^oiled diapers in 
a covered. leak-proof 
container v/hich is emptied 
and cleaned daily. 

(D) wash l;is/hor hands 
before handling food and 
feeding tlio children. 

(E) v;ash his/her hands 
before, as well as after > 
diapering each child. 

(F) use acceptable sanitary 
procedures wlien preparing 
and serving food. 

(G) refrigerate all 
perishable food and 
beverages . The 
refrigerator shall be in 
good repair and maintain a 
temperature of 45 degrees 
Fahrenheit or bclov;. 

(H) label all bottles for 
eacli individual child, 
except when there is only 
one bottle-fed child in 
care . 

(I) serve only pasteurized 
milk and milk products. 

(J) have a house that 
is free of rodents. 

(K) screen all windows and 
doors used for 
ventilation . 

(L) Jiave all household 

pets vaccinated with 
up-to-date vaccinations as 
required by North Carolina 
lav; and local ordinances. 
Rabies vaccinations are 
required for cats and 
dogs . 

CM) store garbage in 

waterproof containers with 
tight fitting covers. 

(N) provide individual 

linens for rest time for 
eacIi child in care for 
more tlian four hours . The 
linens shall be changed 
wcelcly or whenever they 
become soiled or wet. 
(b) The operator shall assure 
that the structure in v;liich the 
day care home is located 
complies with the following 
requirements : 

(1) Comply v;ith Section 
509.2 of the North Carolina 
Building Code or have 
vjritten approval for use as 
a day care homo by the local 
building inspector. 

(2) Have at least one 

exit from each floor used by 
children. Hallways and 
passagcviays to the exit 
sliall never be blocked. 

(3) Assure that all indoor 
areas used by children arc 
adequately heated in cool 



wcatlicr and ventilated in 
warm v;eatiicr . 
(4) Assure that fuel 

burning heaters are 
properly vented to the 
outside. Fuel burning 
heaters, firoplacer., stove, 
and portable electric space 
heaters shall have a 
securely attached guard. 

Notice is hereby given in 
accordance ivith G.S. 150B-12 
that the Child Day Care 
Commission intends to repeal 
regulation cited as 10 NCAC 3U 
.2005. The purpose of tlie 
proposed regulation is to 
provide information to 
Commission . 

The proposed effective date of 
tliis action is January 1, 1987. 



Statutory Authority: 
143E-17; 143B-168.3. 



G.S. 



The public hearing will be 
conducted at 10:00 a.m. on 
Seoterr.ber 18, 1985 at Mission 
Valley Inn, 2110 Avent Ferry 
Road, Raleigh, N.C. 

Comment Procedures: Written 
comments and requests for time 
to speak at the public hearing 
sliould be addressed to: Lucy H. 
Bode, Cfiairperson, Child Day 
Care Corrmission, 701 Barbour 
Drive, Raleigh, N.C. 27503, and 
be received on or before 
September 12, 1986. 



SUBCH.'^PTER 3U - CHILD 

DAY CARE STANDARDS 

SECTION .2000 RULEMAKIIIG AND 
CONTESTED CASE 
PROCEDURES 

.2005 REPORTS TO THE 

COMMISSION (REPEALED) 



Notice is hereby given in 
accordance v/ith G.S. 150B-12 
that the Commission for Mental 
Health, Mental Retardation and 
Substance Abuse Servicer, intends 
to amend regulations cited as 10 
NCAC 14B .0101 througl^ .0106. 
Tiie purpose of the proposed 
regulations is to combine two 
current sots of rules on 
rulemaking procedures, one for 
the Commission and one for the 
Division Director. and will 
eliminate duplication. Proposed 
cliangos also reflect revisions 
in the Administrative Procedure 
Act made by tlie General Assembly 
in 1985. The revisions in 10 
NCAC 14B .0103 will replace 



298 



NORTH CAROLINA REGISTER 



individual hearing notices with 
required notices in the N . C . 
Rcqistor ■ 

The proposed effective date of 
this action is December 1, 1986. 



(_ci} ^A-j nr;orl 7 n t ho?o rules, 

t lie te rn "rule'' has th e 



meanincT 



fiod in G.S. 150B-2(8a) and 



the amend, ncnt or repe al 
well as the 



include 

of a prior rule ar 

adojotion of a now rule. 



Statutory Authority: G.S. 

143B-10( j)(2); 143B-18; 

143B-147; ISOB-ll; 150B-12; 
1508-16. 

The public hearing vjill be 
conducted at 10:30 a.m. on 
September 17, 1986 at 
President's II Room, Slieraton 
Crabtree, 4501 Creedmoro Road, 
Raleigh, N.C. 

Comment Procedures: Any 
interested person may present 
his/her viov;s and comments by 
oral presentation at the hearing 
or by submitting a written 
statement . Persons wishing to 
make oral presentations should 
contact: Jackie Stalnaker, AP.'\ 
Coordinator, Division of Mental 
Health, Mental Retardation and 
Substance .\buse Services, 325 N. 
Salisbury Street, Raleigh, North 
Carolina 27611, (919) 733-7971 
by September 16. 1986. The 
hearing record will remain open 
for written comments for 30 days 
from Augujt 18. 1986 tlirougl'i 
September 16, 1986. Written 
comments mast be sent to the APA 
Coordinator at the address 
specified above by September 16, 
1986 and must state the proposed 
rule or rules to which the 
comments a e addressed. 



SUBCHAPTER 14B 



SECTION .o;oo - 



RULES OF 
PROCEDURE 

RULE-MAKING 
PROCEDURES FOR 
THE COMMISSION 
AND TH E DIVISION 
DIRECTOR 



.0101 PURPOSE AND SCOPE 
(a) The jurpose of Rules .0101 
through .0107 and Rule .0109 of 
this Section is to sot forth the 
procedures for rule-making 
hearings of the Commission for 
Mental Health, Mental 
Retardation and Substance Abuse 
Services 
— and the Director of the 



Division 



of 



Mr-ntal 



Health, 



and Su'.istance 



M ental Ret. - rdat ioi-. 

Abuse Serv ■ ces . 

(b) The ! roccdures in these 
rules shr J 1 be folloi'cd by 
per-^ons v.ishing to .-.ubmit 
coiT.monts, written or oral, at 
rulc-inakin'j hearings and by 
persons requesting additional 
informatio;i regarding proposed 
or adopted rules. 



.0102 PETITIONS 

(a) E.xccpt for petitions 
ronarding the addition, 
dclctioii. or rosclicduling of 
controlled substai^.ccs v;hich are 
governed by 10 KCAC 45H .0217, 
any person wishing to submit a 
petition requesting the 
adoption, amendment, or repeal 
of a rule by the C o m miasicn 
commission -for- Mrrrttrf: Hcal t ' iTT 
Mcnt al Rtr b a r d trbd-ort cinri Subs t ance 
Abtrstr £-crrv- l cc 3 or tlie divisio n 
director sliall address the 
petition to; Chai r man, 
exrr^m is s i on -for ^fcn^r^ri^ Ifcai-thT 
McTflrrf: Re t arda t i o n tntd Sub s t ance 
Abxrst? S er vi ce s, ct^ A . P . A . 
Coordinator, Division of Mental 
Hoaltli, Mental Retardation and 
Substance Abuse Services, 325 
North Salisbury Street, Raleigh, 
North Carolir.a 27611. 

(b) The petition shall contain 
the follovjing information: 

(1) either a draft of the 
proposed rule or a summary 
of its contents and the 
statutory authority for the 
coir.mission or t h e division 
d irector to proriiulgate the 
rule ; 

(2) reason for proposal; 

(3) effect of existing rules; 

(4) any data supporting the 
proposal ; 

(5) effect of the proposed 
rule on existing practices 
in the area involved, 
including cost factors; 

(6) names and addr esses, if 
knov jn . of tliose most likely 
to be affected by the 
proposed rule w-i^r^^ 
v-rd dr c : :.ses , if J-nrorm ; and 

(7) name and address of the 
petitioner . 

( c ) The A. P. A. coordinator 



shall 


de 


ter 


mine 


i.'lmthor the 


rule 


cones 


unr 


or 




the stati 


tory 


author it 


V of 


th 


cor.mission or 


the < 


iv 


is j on 


director or 


both 


e-ind sub 


mit 


the 


petition to 


the 



.app ropri at e bod y. 



or 



-irc'> i.d_l Tlie co.nmission 

ivisio n director sh 

r;.iine, based on a study 

facts stated in 
tion, whether tlio pub 
rest will be served 



ete 

ho 

cti 

nte 

ran 

omin 

hal 

f 

ddi 

com 



petition . 
divinion direc 



ting tlio 
ission pr_ 
1 con;jidcr nil tlie conte 
the petition, plus 
tior.al information irb 
cd relevant . 



all 
of 
the 
lie 
by 
The 
tor 
nts 
any 



-HH- loj. Witi-rin 3^ dsrys 



NORIH CAROLINA REGISTER 



299 



: » u Ijiil^sion erf -tire par titi o n ■ -Hrc 
c o n r iii;; 5 i o n -s-I-rri-i re nde r a final 
Tho coranission or 



occ xs^on . 



division dii'octor shall rcpder a 



final dec ir, icn 



the petitio n 



v/ithin the time roguiremonts of 
G.S. 150B-16. If the decision 
is to deny tlie petition, -th? 

petitioner shall be notified in 
vjriting — st at .li ^g a nd provided 
the reasons for tlie denial. 
Denial of the petition shall be 
considered a final agency- 
decision as specified in G.S. 
^-S-JA— 1-&T 150B-16. If the 
decision is to approve tlio 
petition. -Htc c h^ ^i r r. an s hall 
Inicici te rule-making proceedings 
shaJ.l bo initiated in accordance 



with 



- T-&&A— i 1 [ ^1 ) tmd -I SQA IS 
+-5-07"t — Hrr the rules in 



his Sect ion . 

.0103 NOTICE 

( a ) Upon a d o b c rmina t ic n -to 
> .o ld V.'hen a rule-making hearing 
is schediiled f o r e i t h e r the 



:om2jis3iori 



or 



the 



d i vision 



director ■ cTrtiTC-r in response to 
petition or otherwise. tho 
c o mmissi on d ivision shall give 
notice "to ell -i-irircri- cs t cd pa rfc i -gt? 
ox a publ ic ircmnnrg orr "tlt^ 
• .:. ro p o scd r ul e -irr a cc o rdrrffcx; trirth 
e-rS-7 +4-59—1-3 crtd +5-37^—1-2^ of a 
public hearing. The notice 

shall bx: given cb le as 'b +0 tteys 
before t4rc puiri-xc hea r ing tmd 
■birs adopt ion , trmtnrdrTcnt-r or 
I ' cp c al erf -Hrc rul e . moot the 

requirements of G.S. 150B-12 
except that hearing notices for 
commi ssion rule-making h earings 
shall meet the time reguirements 



of G.S. 145B-18. 




agencies 

placed X 



■Hrc 
the 



ad dr c s: 
Coordinator . Di v" 
lltraltlrr f-l'CTrbtri: 
S- ubs 'lra r.c e A bu se 
ii 'orth Salis 'bcrry 
.. ' ort h Carol ina 



■for 
rtrl-c — ntafchrg n ot ices 
xt" a \!v it ten r ci^uos t . 
■ furnishing t hei r name 'Trd 

to-^ A-rfVA- 

of fterrtai 
rb ion and 
Servic e s . 5£-5 
b r e e t . Ral e iah. 
276 1 1 . Tho 

I 'cq ucs t- shall st a t ^ ++rc subjec t 
^ r e a 3 witli in t^TO autl'ioi" 1 1 y o^ 
■■Hre c o mmission -for vdiicli no t ice 
■iij r cqu ^- b te J . 

(c ) TiTe cr i 'vision directo r or 
JTirs designee y h. ':ll rev i e v? -tiTO 
." .a il in g lis t p eriodical l y rrrrd 
iray ;fr ite t-o any p e r s o n on t-ho 
- list to inquii e rrho tli cr ±hzrt 

■ jc v Lon v. ' is lTCTS tro r emain on t4\^ 
• lis t . Jtx no rxrsponse irs 

i -e ccivcd wi t hin oO d ay s . -that- 
por-son may bo removed ■rrom *tno 
IrirSTrv 

( d ) (h ) Persons desiring 



information in addition to that 
provided in a particular 
rule-making notice shall contact 
tiie division's A. P. A. 
coordinator or other person 
specified in the heariiig notice 
according to the directions in 
the notice . 

.0104 HEARINGS 

(a) Oral presentations. 

Ary person desiring to make an 
oral presentation on a proposed 
rule should file a request at 
least one day prior to the 
hearing v;ith the division's 
A. P. A. coordinator or other 
person specified in the hearing 
notice. Any person making an 
oral presentat io.n is ei.couraged 
to submit a written copy of the 
presentation to the hearing 
officer prior to or at the 
hearing. Oral presentations 
shall not e.xceed 10 minutes 
unless, upon request either 
before or at the hearing, the 
hearing officer grants an 
e.xtension of time for good 
cause . 

(b) Written Submissions. 
(1) Any person may file a 

v;ritten si'.bmission 

containing data, comments, 
or argu.ments aft e r 
publicati on o^ a rtri^o — nrafcimg' 
ii ot ic e trp to one t'ay p r i i r 
±-o ±r:s h earing . v.'j thin the 
30-dav 



period that 



the 



hearing record is open for 



'.■.•ritt?n 



cor.monts . 



The 

deadline for written 
submissions shall be stated 
in the hearing notice. 

(2) The vjritten submission 
shall clearly state the 
proposed rule to v.'hich the 
comments are addressed and 
shall also include che name 
and address of tho person 
submitting it. Written 
submissions shall bo sent to 
the person and address 
specified in 
notice . 

-(-3-> THts liear in g 
promptly ackno 
of aid: v?ri ttc n sub m-i s s ions . 

(c) Management of Hearing. 

The hearing officer shall have 
co.Tiplete control of the hearing, 
including : 

(1) the responsibility of 
liavinq a record made of the 
hearing , 
C2) extension of any time 
allotments , 

(3) recognition of speakers, 
C4) elimination of 

repetitious presentations, 
and 
(5) general management of 
the liearing. 

(d) Fair Opportunity to 



the hearing 

)f f ic -cT- s hall 
d-gT:r re c eip t 



300 



NORTH CAROLINA REGISTER 



Present Views. The hearing 
officer shall insure that eacli 
person participating in tlio 
hearing is given a fair 
opportunity to present views, 
data, and comments. 

.0105 JUSTIFICATION OF 

RUoE-MAKING DECISION 

(a) Any interested person, 
either prior to adoption of a 
rule or within 30 days 
thereafter, vmo desires a 
concise statement of the 
principal reasons for and 
against the adoption of a rule 
by the commission or division 
director and the factors that 
led to overruling the 
considerations urged against 
its adoption ^ may submit a 
request to: Criaii ' iriai i xrt t-lrc 
Cowmissi o-rr c/o A. P. A. 
Coordinator, Division of Mental 
Health, Mental Retardation and 
Substance Abuse Services. 325 
North Salisbury Street, 
Raleigh, :;orth Carolina 27611. 

(b) For yurposes of this Rule, 
an "interested person" shall be 
any person, group, or 
organization whose rights, 
duties, or privileges miglit be 
affected by the adoption of the 
rule . 

(c) The request shall bo made 
in v;riting , shall identify the 
rule or proposed rule involved, 
and shall contain a statement of 
the reasons of interest. 

.0106 RE'JORD OF RULE-MAKING 

PROCEDURES 
A record of all c ommissi o n 
rule-makinj hearings shall be 
pc r ; nanen t l r>' maintained by the 
o f f ice o f the 



A 


j.vis ion' s 




A 


-P 


A . 


ccorci 


inat 


or . 


T 


or 


recorc 
publ ■■ 


c 


s 


ha 


11 


bo nv 


a i 1 a 


blc 


f 




inspection 


dur 


-in.q 



req\ilar otfice liours and shall 
include : 

(1) aiiy petitions r ece iv e d by 
■the c ommissi o n, related to 
the_h o ?. ring . 

(2) the hearing notice, 

(3) all written memoranda and 
inform:ition submitted, 

(4) a record of the oral 
liearing, ttrrd 

(5) any statement of 

reason j\ j s ?;uod to an 

iiiter e ~.ted p e rson according 
t o Ri-Je .0105 of this 

S oct ion . ancl 

•fS^ 16J. a final draft of the 
rule . 
Thu recor d shall be trytrid ab lG 
•frrr ptrlyi-i.c -r;rr ,pcc bimx du i - ing 
nrgtrlcrr o^^r i c e h ours — 



Notice is liereby given in 
accordance with G.S. 150B-12 
that the Commission for Mental 



Health, Mental Retardation and 
Substance Abuse Services intends 
to adopt, amend, repeal 
regulations cited as 10 NCAC 14B 
.0109; 10 NCAC 14C .0401 and 
.0405 through .0415; 10 NCAC 45G 
.0308; 10 NCAC 45H .0202, .0203, 
. 0205 . The purpose of tlie 
proposed regulations 10 NCAC 1 4B 
.0109 and 10 NCAC 14C .0401 and 
.0405 througli .0415 are proposed 
for repeal to eliminate 
repetition of statutes and 
internal management policies; 10 
NCAC 45G .0308 is proposed for 
adoption to limit Dronabinol to 
use as an antiemetic for nausea 
associated with cancer 
treatment; 10 NCAC 45H .0202, 
.0203 and .0205 are proposed for 
amendment to reschedule 
controlled substances for 
consistency with action taken by 
t!ie Drug Enforcement 
Administration and tlie General 
Assembly . 

The proposed effective date of 
tliis action is November 1, 1986. 

Statutory Autliority: G.S. 

90-88; 90-100; 90-101(h); 

122C-55; 122C-132; 122C-206; 

143B-147; 150B-11; 150B-13. 

The public hearing will be 
conducted at 10:30 a.m. on 
September 17, 1986 at 
President's II Room, Sheraton 
Crabtree, 4501 Creedmore Road, 
Raleigh, N.C. 

Comment Procedures: Any 
interested person may present 
his/her vicvjs and comments by 
oral presentation at the hearing 
or by suljmitting a written 
statement. Pcrso:is v;ishing to 
make oral presentations should 
contact: Jackie Stalnaker, APA 
Coordinator, Division of Mental 
Hcaltli, Mental Retardation and 
Substance Abuse Services, 325 N. 
Salisbury Street, Raleigh, North 
Carolina 27611, t919) 733-7971 
by September 16, 1986. Tlie 
hearing record will remain open 
for written comments for 30 days 
from August 18, 1986 through 
September 16, 1986. Written 
comments must be sent to the APA 
Coordinator at the address 
specified above by September 16, 
1925 and must state the proposed 
rule or rules to which the 
co.Timonts arc addressed. 



SUBCHAPTER 14B 



Ri'LES OF 
PROCEDURE 



SECTION .0100 - RULE-MAKING 
PROCED'JRES FOR THE COMMISSION 

.0109 TEMPORARY RULES (REPEAL) 



NORTH CAROLINA REGISTER 



301 



SUBCHAPTER KC 
SECTION .0^(00 - 



- GENERAL RULES 

TRANSFER OF 
CLIENTS 



.0401 REFERRAL OF PATIENTS 
(REPEAL) 

.0405 TRANSFER OF RESPONDENTS 
IN PRE-HEARING CUSTODY 
(REPEAL) 

.0406 PURPOSE AND SCOPE 
(REPEAL) 

.0407 DEFINITIONS (REPEAL) 

.0408 TRANSFERS BETWEEN 

REGIONAL PSYCHIATRIC 
HOSPITALS (REPEAL) 

.0409 TRANSFERS BETV.'EEN 
REGIONAL MENTAL 
RETARDATION CENTERS 
(REPEAL) 

.0410 TPvANSFERS BETWEEN 
REGION.'\L ALCOHOLIC 
REHAB CENTERS 
(REPEAL) 

.0411 TRANSFERS BETWEEN 

DISSIMILAR REGIONAL 
F.aCILITIES (REPEAL) 

.0412 MEDICAL-SURGICAL 

TRANSFERS (REPEAL) 

.0413 NORTH CAROLINA SPECIAL 
CARE CENTERS (REPEAL) 

.0414 REVIEW PROCEDURE 
(REPEAL) 

.0415 INTERSTATE TRANSFERS 
(REPEAL) 

SUBCHAPTER 45G - MANUFACTURES: 
DISTRIBUTORS: DISPENSERS AND 
RESEARCHERS OF CONTROLLED 
SUBSTANCES 



(c) Depressants. Unless 
specif icallj? excepted cr unless 
listed in nnothcr schedule, any 
mr.terial compound, mi.iture or 
preparation which contains any 
quantity of the following 
substances having a depressant 
effect on the central nervous 
system, including its salts, 
isomers and salts of isomers 
vjhenever the existence of such 
salts, iso]riers and raits of 
isomers is possible within the 
specific chemical designation: 

ill 

mocloqualone 2572 

(2) methpcfualone 2565 

.0203 SCHEDULE II 
(e) Depressants. Unless 
specifically excepted cr unless 
listed in another schedule, any 
material, compound, mixture of 
preparation whicli contains any 
quantity of the following 
substances having a depressant 
effect on the central nervous 
system, including its salts, 
isomers and salts of isomers 
whenever the existence of such 
salts, isomers and f;alts of 
isomers is possible v;ithin the 
specific chemical desigr.at ion : 
(1) Amobarbital 2125 

Hctliac/ualorie 256"5 



Pentobarbital 



i270 



Secobarbital 2315 

Hal lucinoqonic Substances. 
Dronabinol (?:vnthetic) : n sesam e 
oi l and en ca psulated i n a soft 
qol atin capsule in a U.S. Food 
and Drug Ad ministration approved 

drug prod act 7369 

Some other names 



for 


dronab 


inol 


: (6aF'-trans )- 


6a. 7 


8, 10a- 


tet 


rahvdro- 


- 6 


6,9- 


trimothvl- 


3- 


pent-i 


1- 


6H- 


ddbenzo b , d 


pvran- 1 - 


o1 


, or 


(-)- 


delt 


a- 


9- 


(trans)- 



tetrahydrocannabinol ■ 



SECTION .0300 



PRESCRIPTIONS 



.0308 USE OF DRONABINOL IN 
SCHEDULE II 

Practitioners licensed pursuant 
to Chapter 90, Article 5, may 
dispense Dronabinol (synthetic) 
in sesame oil and encapsulated 
in a soft gelatin capsule in a 
U.S. Food and Drug 
."Administration approved drug 
product only as an antiemetic 
agent in cancer cliemotherapy . 



SUBCHAPTER 45H 



DRUG TREATMENT 
FACILITIES 



;;ECTI0N .0200 - SCHEDULES OF 
CONTROLLED SUBSTANCES 

.0202 SCHEDULE I 



.0205 SCHEDULE IV 
(b) Depressants. Unless 
specifically excepted o" unless 
listed in another schedule, any 
material, compound, mi.xture or 
preparation v.'hich contains any 
quantity of tlie following 
substances, including its salts, 
isomers and salts of isomers 
v.'henever the existence of such 
salts, isomers and salts of 
isomers is possible wichin the 
specific chemical desigr.ation : 

( 18) Midazolam 2 884 

(24) Quazepam 2881 

Notice is hereby given in 
accordance vjitli G.S. 150B-12 
that tlie Director of the 
Division of Mental Health, 
Mental Retardation and Substance 



>02 



NORTH CAROLINA REGISTER 



Abuse Services intends to adopt, 
repeal regulations cited as 10 
NCAC 14B .0201 through .0207; 
KiC .0704 through .0716; 1 5B 
.0902 through .0908; 15D .0901 
through .0931; 1 5E .1402 through 
.1435; 16B .0501 through .0510; 
16E .0033; 1 7B .0201, .0202; 17C 
.0201; 17D .0201. Tlio purpose 
of the proposed regulations 10 
NCAC 14B .9201 through .0207 are 
proposed for repeal and will be 
replaced fcy combined rules for 
the Commission and Division 
Director being amended in 10 
NCAC 14B .0101 through .0106. 
10 NCAC 14C .0704 through .0716 
are propo-;ed for adoption and 
will provide uniform rules 
governing deportment, traffic, 
parking, and registration of 
vehicles at Division 
institutions. 10 NCAC 15B .0902 
through .0908, 1 5D .0901 through 
.0931, 15E .1402 through .1435, 
16B .0501 through .0510, 16E 
.0033, 17B .0201 and .0202, 1 7C 
.0201, 17D .0201 are proposed 
for repeal and will bo replaced 
by the u)iiform deportment and 
traffic rules proposed for 
adoption In 10 NCAC 14C .0704 
through .0716. 

The proposed effective date of 
this action is December 1, 1986. 

Statutory Authority: G.S. 
14-132; 20-37. 6(f); 122C-402; 
122C-403; 143-116.6; 143-116.7; 
143B-10( j)(2); 150B-11; 150B-12; 
150B-13. 

The public hearing will be 
conducted at 10:30 a.m. on 
September 16, 1986 at 
President's II Room, Sheraton 
Crabtree, 4501 Crecdmorc Road, 
Raleigh, N.C. 

Comment Procedures : Any 
interested person may present 
his/her views and comments by 
oral presentation at the hearing 
or by submitting a written 
statement . Persons wishing to 
make oral presentations should 
contact: Jaclcie Stalnaker, APA 
Coordinator, Division of Mental 
Health, Mental Retardation and 
Substance Abuse Services, 325 N. 
Salisbury Street, Raleigh, North 
Carolina 27611, (919) 733-7971 
by September 16, 1986. The 
hearing record v/ill remain open 
for vfritten comments for 30 days 
from Augu:jt 18, 1986 through 
September 16, 1986. Written 
comments mi.:st be sent to the APA 
Coordinator at the address 
specified above by Septeirber 16, 
1986 and must state the proposed 
rule or rules to which the 
comiaents ai-s addressed. 



SUBCHAPTER 14B - RULES OF 
PROCEDURE 

SECTION .0200 - PROCEDURES FOR 
DIRECTOR 

.0201 PETITIONS (REPEAL) 

.0202 NOTICE (REPEAL) 

.0203 HEARINGS (REPEAL) 

.0204 JUSTIFICATION OF 

RULEMAKING DECISION 
(REPEAL) 

.0205 RECORD OF RULEMAKING 
PROCEEDINGS (REPEAL) 

.0206 FEES (REPEAL) 

.0207 EMERGENCY RULES (REPEAL) 

SUBCHAPTER 14C - GENERAL RULES 

SECTION .0700 - RULES GOVERNING 

DEPORTMENT: TRAFFIC: PARKING 

AND REGISTRATION OF VEHICLES 

AT DIVISION INSTITUTIONS 

.0704 PURPOSE 

The purpose of Rules .0704 
through .0716 in this Section is 
to establish specific procedures 
governing traffic, parking, 
registration of motor vehicles, 
and the deportment of 
individuals or groups of 
individuals on the grounds of 
division institutions. These 
procedures are supplemental to 
G.S. 14-132 and the statewide 
motor vehicle laws in Cliapter 20 
of the General Statutes which 
are applicable on tlie grounds of 
division institutions. 

.0705 SCOPE 

Tlie provisions of Rules .0704 
through .0716 in this Section 
apply to the grounds and all 
persons thereon and to the 
drivers of all vehicles, whether 
public or private, and shall be 
in force 24 hours a day, e.xcept 
as otherwise provided in the 
rules. It shall be unlawful for 
any person to violate the 
provisions of these rules except 
as otherwise permitted in the 
rules or in the General 
Statutes . 

.0706 DEFINITIONS 
The definitions of all terms 
shall be as provided in the 
General Statutes of North 
Carolina, insofar as they are 
provided. The moaning of other 
terms sliall be as follows: 
( 1 ) "Crosswalk" means that 
portion of a roadway 
ordinarily included within 



NORTH CAROLINA REGISTER 



30: 



the prolongation or 
connection of lateral lines 
of sidewalks at 
intersect ionc , or any portion 
of a roadway distinctlj' 
indicated for pedestrian 
crossing by lines or otlier 
markings on the surface of 
the roadv.'ay . 

(2) "Dormant storage" means 
the parking of a 
non-operative veliicle for a 
period longer tliaii seven 
days . 

(3) "Institution" neans the 
division's psychiatric 
hospitals, mental retardation 
centers, alcoholic 
rehabilitation centers, North 
Carolina Special Care Center 
at VJilson, V.'right School and 
V.'hitaker School . 

(4) "Institution director" 
means the chief 
administrative officer or 
nanager of the institution or 
his/licr designee. 

(5) "Law enforcement officer" 
means an individual v;ho is 
qualified r;nd has been 
certified or vjho is in the 
process of being certified 
according to tlie requirements 
of G.S. 17C-6 or has been 
appointed under G.S. 
T22C-183. 

(6) "Park" means the standing 
of a vehicle. v.'hether 
occupied or net, other than 
temporarily for tlie purpose 
of, and v.'liile actually 
engaged in loading and 
unloading . 

(7) "Secretr'ry" means 
Secretary of the Department 
of Human Resources. 

(8) "Stop" means, vjhen 
required. co;.iplcte cessation 
of movement . 

(9) "Street or roadway" means 
any way or place designated 
or marked by proper 
authorities for vehicular 
travel . 

(10) "Traffic office" means an 
office as designated by the 
institution director to 
administer those rules. 

(11) "Vehicle" means every 
device in, upon, or by which 
any person or property is or 
may be transported or drai.-n 
upon the grounds. excepting 
devices moved by human pov;cr . 

(12) "K'nlk or walkway" means a 
way designed for, or marl'.cd 
by proper authorities for, 
the exclusive use of 
pedestrians, whether along a 
street or roadv;ay or not . 

.0707 def.'5lCi:;g signs 

No person without authority 



shall attempt to, or in fact, 
alter, deface, injure, knock 
dov;n or rem.ove any official 
traffic control sign or device 
cr any railroad sign or sig;ial, 
or any inscription, sliield or 
insignia tlioreon, or any other 
part tlioroof . Violator:; of this 
Rule sliall be arrested and 
prosecuted according to the 
provisions of General Statute 
14-132. 

.0703 obeying officers and 
sig:;s 

The driver of any vehicle 
sjiall obey the instructions of 
any law enforcement officer 
having jurisdiction to enforce 
the statewide motor vehicle lavjs 
and of any official traffic sign 
or control device a; plicable 
thereto, placed in accordance 
v;ith the rules of this Section, 
unless otherwise directed by 
such officer. The institution 
director m.ny erect, establish 
and maintain the signs, signals, 
and markings necessary to 
ir.plcment the rules in this 
Section and state motor vehicle 
la';s c-pplicable to the 
institution grounds. 

.0709 VEHICLE REGISTRATION 

(a) Each vehicle used or 
parked on institutional property 
by employees shall be registered 
and shall display an official 
sticker. Newcomers to the 
institutional staff shall 
display an official sticker 
within 48 hours of beginning 
employment. excluding holidays 
and v;eekends. For the purposes 
of the rules in this Section, 
"employees" shall include those 
persons v;ho have assigned work 
stations on the grounds of the 
institution. Bonafide visitors 
to the institution arc exempt 
from vehicle registration 
requirements. Students and 
trainees shall register their 
vehicles and display an official 
temporary permit valid up to 90 
days . 

(b) The registration sticker, 
shall be mounted on the left 
hand side of the rear bumper of 
the vehicle in such a r.anner as 
to be clearly visible upon 
approaching the rear of the 
vehicle. The temporarv permit 
sliall be displayed in tlie lov;er 
left hand side of tlic rear 
window . 

(c) Out-of-date stickers 
shall rot be displayed on 
vehicles . 

(d) No person shall display a 
counterfeit sticker or sticker 
issued to another vehicle or 
vehicle registrant. 



304 



NORTH CAROLINA REGISTER 



(e) The person to whom the 
registration sticker is issued 
sliall be responsible for all 
civil penalties charged foi- 
violation of the rules in tliio 
Section regardless of who is 
operating the vehicle. 

(f) The employee sliall 
present his/her ov.nership 
registration card or other proof 
of ov;nership, if requested, foi- 
the vehicle to be registered. 

(g) A copy of the latest 
traffic rules shall be issued 
v;ith each registration sticker. 

(h) The individual assigned 
responsibility for a vehicle 
with a permanent state license 
shall receive notice of any 
improper operation of or 
citation issued to the vehicle 
for conveyance to the 
appropriate operator of tlic 
vehicle . 

(i) Registration stickers 
sliall servo as parking permits 
rind may be obtained r^s such 
location as designated by the 
institution director. 

(j) Registration stickers 
shall be issued to be valid for 
a period of up to three years 
dating from the date of the 
facility-wide issue. There 
:;hall be a charge of one dollar 
($1.00) each for the original 
logistration sticker and one 
dollar ($1.00) for each 
additional or replacement 
registration sticker. 

(k) A tc.nporary permit shall 
be obtained when it is necessary 
to bring a vehicle on the 
grounds as a replacement for one 
previously registered. 

Temporary permits shr.ll be 
obtained at the location 
designated by the institution 
director and shall be effective 
only for the period of time 
specified on the temporary 
ijcrmit . 

.0710 VEHICLE OPERATION 

(a) No vehicle shall be 
driven or ridden except upon the 
rtrccti;, :-oadways, alleys and 
driveways of tlie ins L i"! ut ion ' s 
riround::;. Vehicles sliall not be 
c'.rivcn or ridden upon or v;ithin 
rny sidewalk or wailcing area or 
v.ithin any area not designated 
for vehicular traffic. 

(b) When stop signs or 
signals are erected upon 
ttreeta. roadv;ays, or alleys of 
the institution grounds each 
driver of a veliicle shall stop 
at every such sign or signal, or 
at a clearly marked stop line, 
before entering the street or 
intersection, except when 
directed to proceed by an 



officer or traffic control 
signal . 

(c) V,'hen yield signs are 
erected upon streets, roadways, 
or alleys, each driver of a 
vc'iiiclo shall yield the 
r iglit-of-v/ay to opposing traffic 
before entering the street or 
intersection, except when 
directed to proceed by an 
officer or traffic control 
signal . 

.0711 PARKING 

(a) No person sliall stop any 
vehicle in any street, roadway 
or parking lot except for 
parking or stopping as allowed 
by the rules in this Section 
unless such stop is made 
necessary by : 

( 1 ) the approacli of emergency 
veliiclos as defined in the 
General Statutes; 

(2) the approach of any 
procession which is given 
the right-of-way; 

(3) the stopping of a bus to 
load or unload passengers; 

(4) traffic signals; 

(5) the passing of some other 
vehicle or pedestrian; or 

(6) some emergency. 

In the cases covered by these 
exceptions, veliicles shall stop 
so as not to obstruct any 
crossvjal]-: , wallcway, street, or 
intersection. In case of an 
emergency, provisions for the 
removal of the veliicle shall be 
made vjithin a reasonable period 
of time. "Reasonable time" 
siiall be determined by the 
seriousness of the hazard 
created by such an emergency 
s top . 

(b) VJhen signs are erected, 
placed or iiistallcd establishing 
time zones for parking and 
giving notice thereof, no person 
shall park a vehicle for a 
period of time longer than that 
indicated by the sign. Time 
zone restrictions shall be in 
effect at all times, unless 
otlicrvjisc indicated on the time 
zone sign. 

(c) Vehicles shall be parked 
at tlic angle to the curb 
indicated by marJcs or signs, and 
no vehicle shall be parked in 
such a manner as to occupy more 
t}ian the space indicated by 
lines, signs. or markings for 
one vehicle . 

(d) Vehicles shall be parked 
only in designated parking 
spaces . Parking spaces are 
defined by appropriate painted 
lines in the surfaced parking 
areas and by parking bumper logs 
in tlie gravel-dirt parking 
areas . 

(e) Vehicles shall be parked 



NORTH CAROLINA REGISTER 



30: 



'.^Iith the front end tov;ard the 
curb except where parallel 
:3arking is indicated. In no 
i;istance shall a vehicle be 
:)arked with its rear to the 
curb . 



shall park a 
any street . 
parking lot or 
the principal 



(f) No person 
vehicle upon 
roadway, alley, 
driveway for 
purpose of: 

(1) displaying it for sale; 

(2) washing, greasing or 
repairing such vehicle 
except for repairs 
necessitated by an 
emergency; or 

(3) storage which is not 
incident to the bonafide use 
and operation of such 
voliicle . 

(g) Agents designated by the 
institution director may remove 
to a place of storage, at the 
owners expanse, any unattended 
vehicle illegally stopped or 
parked in such a nanncr as to 
he : blockir.g the normal 
movement of a properly parked 
car; obstructing the flow of 
traffic; creating a safety 
Iiazard endangering life and/or 
property; using authorized or 
unauthorized parking space for 
dormant storage; or in violation 
of the rules in this Section. 
Any such removal sliall meet tlie 
requirements of Article 7A of 
Chapter 20 of the General 
Statutes . 

(h) Nothing in the rules in 
this Section shall be deemed to 
prohibit authorized service 
vehicles from operating in such 
a manner as is necessary for the 
particular service being 
performed . 

.0712 PARKING AREAS 
All vehicles may park in any 
designated parking location on a 
first-come, first-served basis, 
except in those areas designated 
and marked as service zones, 
loading zones, handicapped 
parking, and restricted and/or 
reserved parking zones or 
spaces . 



.0 
If 

vio 
Sec 
sit 
vis 
ins 
imm 
nam 
par 
ipp 
c'.es 
.-.nd 
nee 
ere 



713 PARKING EXCEPTIONS 

a vehicle must be parlced in 
lation of the rules in this 
tion due to an emergency 
uation, the employee or 
itor shall notify the 
titution traffic office 
ediately and give his/lier 
c. make and color of vehicle, 
king permit number if 
licable, location, 

cription of the emergency, 
estimated time vehicle vjill 
d to remain in the prohibited 
a . 



.0714 SPEED LIMITS 

Speed limits for the gx-ounds of 
tlie institution shall be 
indicated by clearly marked 
standard speed limitation signs 
posted in conspicuous locations 
next to streets and roadvays. 
Speed limits lower than those 
provided in G.S. 20-141 shall be 
established only upon the 
direction of the secretary and 
sliall be based upon a traffic 
and engineering investigation 
conducted pursuant to G.S. 
143-1 16.7(b) . A copy of the 
traffic and engineering 
investigation may be inspected 
in the traffic office of the 
institution . 

.0715 STREET AND GROUNDS 
RESTRICTIONS 

(a) No person shall use the 
streets, roadways, parking lots, 
alleys, driveways, or sidev/alks 
for the conduct of protests or 
for the purpose of advertising 
any article, commodity, service, 
or event by sign, poster, 
drawing, painting, or 
pliotograph. by crying out the 
same. or by using any 
loudspeaker, musical instrument 
or noise making device. 
However, the institution 
director may formulate and issue 



regarding the 

of official 

and/or 

for a specific 



a policy 
broadcasting 
announcements 
instructions 
event . 

(b) No person, firm, or 
corporation shall use the 
streets, roadways, parking lots, 
alleys, drivev;ays, or sidewalks 
for the purpose of selling, or 
offering for sale, any article, 
commodity or service. 

(c) The institution director 
may close any street, roadway, 
parking lot, or driveway, or any 
portion thereof, vjhen necessary 
for the purpose of construction 
or maintenance work, or for the 
protection of pedestriar.s or for 
special events. V.'liin such 
closing has been indicated by 
proper signs, barriers or 
obstructions. no person shall 
v;illfully drive into or upon 
such street, roadway, alley, or 
driveway, or portion thereof, or 
break down, remove, injure or 
destroy any such sign, barrier 
or obstruction. 

(d) No person, firm, or 
corporation sliall throw, dump or 
place in any manner any paper, 
glass, trash, garbage, rubbish, 
filth, wood, bo.xes. dirt, or any 
other articles of substance on 
any street. roadway, parking 
lot, alley, driveway, or 



306 



NORTH CAROLINA REGISTER 



sidewalk of the institutional 
grounds or any place v;here such 
matters may be blown or washed 
or may fall in these areas. 
This subparagraph shall not be 
deemed to proliibit any 
construction or maintenance work 
or properly authorized disposal 
operations . 

.0716 VIOLATIONS 

Ca) Violation of the rules in 
this Section shall subject the 
offender to a civil penalty. 
The offcnr'.er and the person to 
whom the vehicle is registered 
may be charged civil penalties 
for non-moving violations as 
follov;s : 

(1) employees only: 

(A) failure to register a 
vehicle, five dollars 
($5.00); 

(B) failure of a registered 
vehicle ov;ncr to secure a 
temporary permit when 
using a non-rogistcrod 
vehicle, two dollars 
($2.00); 

(C) failure to display or 
impr:iper display of 
parking sticker, two 
dollars ($2.00); and 

(D) failure to remove 
expi'od parking sticker, 
two dollars ($2.00); and 

(2) all violators: 

(A) parking in a restricted 
area or restricted parking 
space, five dollars 
($5.00); 

(B) blocking a fire 
hydrant, five dollars 
($5.00); 

(C) parking on arass, five 
dollars ($5,001; 

(D) blocking a walkv.'ay, two 
dollars ($2.00); 

(E) double parking or 
parking in driving lane, 
five dollars ($5.00); 

(F) inproper use of a 
service zone, five dollars 
($5.00); 

(G) parking out of space, 
two ciollars ($2.00) ; 

(H) parking v;itli rear of 
vehicle to curb, two 
dollars ($2.00); 
(I) overtime parking, two 

dollars ($2.00); 
(J) p :rking in "non- 
parking" zone, five 
dollars ($5.00); and 
(K) parking in a 

"handicapped space", 
tv;enty-five dollars 
($25.00) . 
(b) Civil penalties for non- 
moving violations listod in (a) 
of this Rvle shall be processed 
as follows : 

( 1 ) By the fifth calendar day 



of the month following the 
citation, the face value of 
the penalty indicated may be 
paid by writing on the 
ticket the name of the 
person to whom the vehicle 
is registered and mailing it 
together with payment to the 
person or office as 
designated on the citation 
by the institution director. 

(2) If the person receiving 
the citation feels that the 
citation was unjustly 
issued, a request for review 
may be made in writing to 
the director of the 
institution. The request 
for review shall be made 
u-ithin five days of the date 
tlic citation vjas issued and 
shall state tlie reason for 
review. Tlio director shall 
notify the person in writing 
of the final decision 
regarding tlie review. If 
tlie decision sustains the 
issuance of tlie citation, 
the date of written notice 
shall become the effective 
date of issue of the 
citation and the penalty 
sliall be paid according to 
tlic instructions in (b) (1) 
of tills Rule. If the review 
determines a citation should 
not have been issued, no 
further action shall be 
required . 

(3) If the penalty is not 
piid by the fifth calendar 
day of the month following 
the citation, the 
institution director shall 
mail a notice to the person 
in wliose name the vehicle is 
registered. If the offender 
is an institution employee, 
the division supervisor and 
tlie appropriate supervisor 
shall also be instructed to 
contact the registrant . 

(4) If the penalty is not 
paid by the last calendar 
day or the month follvjing 
the citation, the 
institution director shall 
initiate enforcement by 
civil action in the nature 
of a debt . 

(c) Court citations shall be 
issued for all violations not 
listed in (a) of this Rule 
including all violations of 
state motor vehicle laws, all 
speeding violations, violations 
arising from failure to obey 
traffic control signs or 
devices, and violations of 
deportment and grounds control 
requirements. The offender 
shall be cited to stand trial 
for the alleged offense in the 



NORTH CAROLINA REGISTER 



307 



General Court of Justice by tlie 
officer observinrj the violation. 

SUBCHAPTER 15B - BROUGHTON 
}:0SPITAL 

SECTION .0900 - SAFETY AND 
TRAFFIC 

.0902 SPEED LIMIT (REPEAL) 

.0903 PATIENT RIGHT-OF-V.'AY 
(REPEAL) 

.0904 THROUGH TRAFFIC (REPEAL) 

.0905 PARKING SPACES (REPEAL) 

.0906 TIME LIMIT (REPEAL) 

.0907 TRANSPORT OF PATIENTS 
(REPEAL) 

.0908 TG'.'ING IMPROPERLY PARKED 
CARS (REPEAL) 

SUBCHAPTER 15D - DOROTHEA DIX 
HOSPITAL 

SECTION .0900 - TR.f'.FFIC 

.0901 DEFINITIOr,' OF TERMS 
(REPEAL) 

.0902 APPLICABILITY OF 

REGULATIONS (REPEAL) 

.0903 DEFACING SIGNS (REPEAL) 

.0904 VEHICLE REGISTRATION 
(REPEAL) 

.0905 OBEYING OFFICERS AND 
SIGNS (REPEAL) 

.0906 OBTAINING REGISTRATION 
STICKERS (REPEAL) 

.0907 MOUNTING REGISTRATION 
STICKERS (REPEAL) 

.0908 INVALID STICKERS 
(REPEAL) 

.0909 RESPONSIBILITY FOR 
VEHICLES (REPEAL) 

.0910 REPLACEMENT STICKERS 
(REPEAL) 

.0911 TEMPOR.fi RY PERMITS 
(REPEAL) 

.0912 OPERA.TION OF VEHICLES 
(REPEAL) 

.0913 STOP SIGNS (REPEAL) 

.0914 YIELD SIGNS (REPEAL) 

.0915 STOPPING IN STREET 
(REPEAL) 

.0916 BLOCKING TR-\FFIC 



(REPEAL) 

.0917 TIME ZONE PARKI^;G 
(REPEAL) 

.0918 PARKING ANGLE (REPEAL) 

.0919 PROHIBITED PARKING 
(REPEAL) 

.0920 IMPROPER USE OF PARKING 
(REPEAL) 

.0921 REMOVAL OF VEHICLES 
(REPEAL) 

.0922 SERVICE VEHICLES 
(REPEAL) 

.0923 PARKING AREAS (REPEAL) 

.0924 PROHIBITED USE OF 
STREETS (REPEAL) 

.0925 CLOSING TRAFFIC AREAS 
(REPEAL) 

.0926 LOITERING (REPEAL) 

.0927 DUMPING ON GR0UI:DS 
(REPEAL) 

.0928 CIVIL PENALTIES AND 

COURT CITATIONS (REPEAL) 

.0929 TOWING (REPEAL) 

.0930 USE OF FUNDS (REPEAL) 

.0931 PROCESSING TRAFFIC 
VIOLATIONS (REPEAL) 

SUBCHAPTER 15E - JOHN UNSTEAD 
HOSPITAL 

SECTION .1400 - SAFETY AND 
TRAFFIC 

.1402 COVERAGE OF TRAFFIC 
REGULATIONS (REPEAL) 

.1403 ENFORCEMENT OF TRAFFIC 
RULES (REPEAL) 

.1404 DRIVER COMPLIANCE 
(REPEAL) 

.1405 TRAFFIC SIGNS (REPEAL) 

.1406 DEFACING SIGNS (REPEAL) 

.1407 OPERATION OF VEHICLES 
(REPEAL) 

.1408 STOP SIGNS (REPEAL) 

.1409 YIELD SIGNS (REIEAL) 

.1410 '^.'\RKING AREAS ( REPEAL ) 

.1411 STOPPING IN STREETS 
(REPEAL) 

.1412 EMERGENCY STOPPING 



308 



NORTH CAROLINA REGISTER 



(REPEAL) 



(REPEAL) 



.1413 



BLOCKING TRAFFIC 
(RUPEAL) 



.1414 TiriE ZONE PARKING 
(REPEAL) 

.1415 PARKING ANGLE (REPEAL) 

.1416 PROHIBITED PARKING 
(REPEAL) 

.1417 TOWING (REPEAL) 

.1418 SERVICE VEHICLES 
(REPEAL) 

.1419 IMPROPER USE OF PARKING 
(REPEAL) 

.1420 PROHIBITED USE OF 
ST.REETS (REPEAL) 

.1421 CLOSING TRAFFIC AREA 
(RJiPEAL) 

.1422 LOITERING (REPEAL) 

.1423 DUMPING ON GROUNDS 
(R;:PEAL) 

.1424 SP-ED LIMIT (REPEAL) 

.1425 CIVIL PENALTIES AND 

COURT CITATIONS (REPEAL) 

.1426 us:: OF FUNDS (REPEAL) 

.1427 PROCESSING TRAFFIC 
VIOLATIONS (REPEAL) 

.1423 EMi^LOYEE VEHICLE 

REGISTRATION (REPEAL) 

.1429 VISITOR VEHICLES 
(REPEAL) 

.1430 obtaining vehicle 
sticker (repeal) 

.1431 ve;:icle responsibility 
(r::peal) 

.1432 mounting vehicle 
stickers (repeal) 



. 1433 



INVALID VEHICLE STICKERS 
(R':PEAL) 



.1434 VEHICLE REPLACEME.NT 
STICKERS (REPEAL) 

.1435 TE:iPORARY VEHICLE PERMIT 
(REPEAL) 

SUBCHAPTER 16B - CASWELL CENTER 

SECTION .0500 - REGULATIONS 
GOVERNING t-RAFFIC: PARKING: AND 
THE REGISTRATION OF MOTOR 
VEHICLES FOR CASWELL CENTER 

.0501 GENERAL REGULATIONS 



.0502 VEHICLE REGISTRATION 
(REPEAL) 

.0503 OPERATION OF VEHICLES 
(REPEAL) 

.0504 PARKING REGULATIONS 
(REPEAL) 

.0505 PARKING AREAS (REPEAL) 

.0506 SPEED LIMIT (REPEAL) 



.0507 



PROHIBITED STREET USES 

(REPEAL) 



.0508 VIOLATION FINES (REPEAL) 

.0509 TOWING (REPEAL) 

.0510 PROCEDURES FOR 

PROCESSING VIOLATIONS 
(REPEAL) 

SUBCHAPTER 1 6E - WESTERN 

CAROLINA CENTER: IDENTIFYING 
INFORMATION 

.0033 PARKING (REPEAL) 

SUBCHAPTER 1 7B - BLACK MOUNTAIN 
AR CENTER 



SECTION .0200 



PARKING 



.0201 PARKING AREAS (REPEAL) 

.0202 VIOLATIONS (REPEAL) 

SUBCHAPTER 17C - BUTNER AR 
CENTER 

SECTION .0200 - MISCELLANEOUS 

.0201 PATIENT PARKING (REPEAL) 

SUBCHAPTER 1 7D - WALTER B. JONES 
ALCOHOLIC REHABILITATION CENTER 



SECTION .0200 



MISCELLANEOUS 



.0201 PATIENT PARKING (REPEAL) 

Notice is hereby given in 
accordance witli G.S. 150B-12 
that the Department of Human 
Resources intends to amend 
regulations cited as 10 NCAC 44C 
.1601 through .1604. The 
purpose of tlic proposed 
regulations is to specify 
staffing requirements, admission 
criteria, evaluation and 
performance star.dards, and 
monitoring and reporting 
requirements for CBA funded 
scliool related programs. 
Proposed amendments upgrade 
staffing requirements and adjust 
CBA standards to be in accord 
VJith recently cliangod guidelines 
of tlie Department of Public 



KOR-yn CAROLINA REGISTER 



309 



Instruction for in-school 
j:uspension progi-ans . These 
changes will ir.;jrove services. 

The proposed effective date of 
this action is December 1, 1986. 



sc hool vear v;ho do not meet the 
r equirements of paragraph (a) of 
t his rule must comply 'jith the 
follovjin g provisions; 



( 1 ) That durir.g the first 



rtatutorv 
7A-289. 14; 



Authority : 
143-BiO. 



G.S. 



The public hearing will be 
conducted at 2:00 p.m. on 
September 15. 1986 at Division 
of Youth Services. Conference 
■?oon. Dobbin Building, 705 
Palmer Drive. Raleigli, NC 
:'.7603. 



Comment P 


rocedures: Vj'ritten 


comments , 


opinions, and 


argucments 


concerning these 


amendments 


must be submitted by 


Scptarnbor 


10, 1986 to: 


Director, 


Division of Youtli 


.icrvices , 


705 Palmer Drive, 


r.aloigli , 


NC 27603. Oral 


comments (for no more than 10 


:-,inutes) may bo presented at the 


aearing . 




SUBCHAPTER 


44C - CBA PROGRA.M 



STANDARDS 

SECTION .1600 raN'IMUM PERFORMANCE 
STANDARDS FOR CBA FUNDED 
SCHOOL RELATED FROGR/.MS 

.1601 STAFFING 

Ca) Requirements for 
AltornativG School Program (ASP ) 
Teacher/Counselor. Alternat ive 
School Progra m s may include : 



In-School 



Sti-' pension . 



and 



Alternative Loarning Centers. 

The AlrccmTtri: i v e School 

fr o gra r ..s ASP teacher/counselor 
Must be a certified teacher or 
'.luman service related 

professional v/ith at least a 
3. A. degree and some background 
and training in counsel iiig . An 
A-Jrbei'nat i v e Strirocl p-rogmrttr AS? 
teacher/counselor must be 

'.ssigncd full tine to the 
program during the program's 
■ior;aal operating hours. 

i.'-e-TE-r Ai-b.^~Ta-bivc &chxro-i 

in — scho trfr Guspjnsi o n, 

Bc tc: rt-ron R oci mj : , i^irrrrc — ovtt 



year or 
hours of 
classroom 
certified 
service 



year of 
hours of 
classroom 
certified 
service 



i\oonr 
arrd 



TT "TtiTronng 
Alternativ e 



Progr ano . 
Lea rTTirrg 



(b) 
for 

1 acjc 



€cTrtcrr-=-r 

Provisional Standards 

Teacher/Counselor. Khcrc 

trf ;3xl"crcjuat c f undi^tg 

• ; rcvc n ts Irlrc cmp l oyi . ie n t of a 

— :nrt^ir£-ixrd tTm^heir trr h-rrrrrarr 

■ c r vl LC- prcrf crtr ci o nril — ASP 

irrcgr-crnts nrjry tr'cd-i-i-rc a t each er 

:rrdc o-r trthtrr p ara pr o f e j;si c n a-l- 

.rrovirdc-d-r Those 

er.cl ie rs/cQunselors 

_o thf 



liired prior 
bcqinujnq of 1985-86 



employmci.t, five 

supervir:;ion and 

traininc; by a 

teacher or human 

professional be 

provided on a v/eekly basis; 

(2) that in each subr>equent 
employment, tvjo 

supervision and 

training by a 

tcaclier or liuman 

prof essic:ial be 

nrovided on a weekly basis; 

(3) tlie training and 
supervision, required in 
subparagraphs -(-b-)- 

(1 ) and -Hr> (2) of this 
Rule, must cover such things 
as: maintaining discipline, 
overall classroom 

supervision, orientation to 
other faculty members, 
individual counseling, and 
one-to-one tutoring skills 
development, etc . : 
■HH- -tha-t ■'elm teoari C.' .ucati o n 
A-gen-cy -ffcE.A4 rrf tire 
Dc p a rtTTrerrb erf Public 
Ins tr uc t io rt docum cTrt: i t s 
n c ud fTTr t l ' ie pruvisional 
st at Uo and suliriiiit n plan '(to 
be - includ ext in y e a riy 
pr og ram ag r eg i ncnt > for 
u p g r a a ing tlie p r o g r cnn s^ may 
lie req uir c dd by "t-lie annual 
pi o gr ar.1 e'v^' tlua t i o i rr This 
includes -bhe requir -rr .ient ttj 
■the &&A Minimum 

n."aTrce S^r an d a r c s ; 
( 5 ) (4 ) not more 

than four para-professionals 
may be supervised by a full 
time professional; 
( G ) ( 5 ) para-professionals 

must meet all local school 
board requirements for 
employment; and 
■(-?-)■ ( 6 ) Youth assigned 

to programs supervised by 

para-professional personnel 

may not be assigned for more 

than 1 daj's and may not 

spend more tlian 20 days in 

the ASP during any single 

sciiool year. 

(c) Staff/Student 

Ratio. Programs must maintain a 

v;oekly average of not more than 

12 pupils per class period per 

certified teacher or otl;er human 

service professional. Tlic 

v;eekly average per class may be 

increased by si.x pupils for each 

additional certified teacher or 

iiuman service professional 

assigned to the ASP and by four 

pupils per day for each 

para-professional or teacher's 

aide . 



310 



NORTH CAROLINA REGISTER 



(d) Provisional Standard 
for Staff/Student Ratio. 
Programs qualifying under the 
provisional standard for 
staffing must maintain a weekly 
average of not more than six 
pupils per class period. 

.1602 ADMISSION CRITERIA 

(a) Age Limits for 

Students Served by ASP. All 
youth served by CBA funded ASP 
programs must be actively 
enrolled in school and above the 
age of nine . 

(b) Identification and Length 
of Stay. 

( 1 ) Wiren ASP -irs vtsx:d trs 

tr here irrtrs-b havi; been a 
violation orf sclio o l rtrlrcrs 
trrrd reg ulati o ns gov e rning 
disruptive trc d is r espe ct ful 
b e liJivi o r vjhich c ould re sul t? 
■irt otrt — o-f — scho ol su :upc nsion 
or* expul s xoii . Length 

stay may not e .x c c c d 
co ns ^ cu t iv t; 
Disciplinary actions must be 
taken in compliance with 




minimum 



due 



process 



defined herein as: 
(A) there must be a 

fair and reasonable rule 



which 



IS 



broken 



or 



disobeyed : 

(B) the rule must apply 
equally to all: and 

(C) if pu.'iisiiment is meted 
out for violation of a 
reasonable and fair rule, 
that procedure by v.'hich 
tlio punishment is assessed 
must be fair, reasonable 



an d impartial . 



("Some 



Cons iderat ion 



for 



Establishing 



Pol icies 



Relative to Student Rights 



and 



Division 



Responsibilities," 



of 



Human 



Relations 



and 



Studcni 



Affairs, North Carolina 



Department 



of 



Public 



Instructions, Aucrust 



1 



1977, p. 19. ) 
(2) Only the violation 

of nchool rules vjhich a re 
life threatening, or result 
in rerious property damage, 
or involve the use or sale 
of rnv controlled substance 



may 



result 



automat ic 



out-of-school s^ispension. 



(3) For all other 
violations vrhiclt 



could 



out-of-school 



suspension, the ISS prog ra m 
m ust be used liefore t child 
m ay be suspended out of 

case 
the 



s chool , e>.cept in tl io 
whei'O the child or 



child's parent or guardian 
refuses to accept placement 
in the I.S.S. program. 



(JlL "so of 

violat ion 



I.S.S. for the 
of school rules 



til at 



cannot 



result 



out-of-school 



suspension 



shall not be permitted. 
_( 5 ) A cow of tlie school 



rules 



governing 



student 



behavior and stipulating 
app roved srnctions must be 



j ncluded 



the 



annual 



program agi'eer.cnt which i s 
submitted to CBA for funding 
approval . 
(2 ) ( 6 ) An individual 

Education Plan (lEP) --as 
provided in Srr bpa r a gr a p l i (b > 
-t^W- xrE -ttrirs Ru le 

Su hparagrapli (7) and (8) of 



this 



Rule 



-shall be 

required for any child 
assigned to In-School 
Suspension (ISS) in excess 
of 20 non-consecutive days 
per school year. The lEP 
for ISS referrals must 
include : 

(A) a list of other 
resources that have been 
considered or tried or a 
statement that no 
appropriate resource is 
available ; 

(B) documentation of the 
programs and/or the 
school's efforts to 
initate a parental 
conference or the date and 
time such conference took 
place . 

(C) a finding by the 

ASP and responsible school 
officials that continuing 
involvement in the ISS is 
in the best interest of 
the youth . 
<3 ) tlrrrrimtnn due p rocess 
■is I ' lc r cby d efined as : 
■(tVt there must be s 
ftrrr arrd reas o nabl e 
Tf hi cli -rs bi uken 
dli Lo b eye d ; 
( ) trtte rule must 

apply e qually tro all ; 
-(-64 irf punisiim^e n t irs m ete d 
otrt ftrr v-r olatioi t trf a 
roa striT abl e arrd ■frrrr rule , 
tliat p L" o c e d ur-e by wii icn 
tire punishmen t irs ass e ssed 
imrtrt in: fair , vediaunabl e , 
arrd impor t i ai-r 
-M4- A-SP m-ar trirso be 

u s ed a-s a tr e ali i' .ent and 
cou ns e ling alr- ternativc ■to 
sb imulate studen t 

rro-hx-v'trt i o n , build 



rul e 
xrr 



and 



improve 
habi t s an d 



self — c o nf idc i ice , 
intl iv idual study 

I-f 1 engt h of ^rtay 
t-crt c-crrrsc cut i -(ro day 
xi idi v i d ua l i z cd Edu c a t i on 

PI an mu st be developed . 
(7) Admission to Alternative 




NORTH CAROLINA REGISTER 



311 



Learninq 


C 


?ntors 


proqrans 


requires +h 


3 develoi 


THOn 


t of 


an Individ 


ur 


1 Edncat 


ion 


Plan 


(lEP) 


n- 


itl inino 




the 


trcatnpnt . 




c e 1 m s p 1 i n q 


and 


teach inq 


St 


rateqios 


to 


be 


usod to 


st 


irni.'Iato 


sti' 


dent 


motivation 




and 




self 


confidence 




a n d to 


imp 


rovo 


stndv liabjt 


'-. ard c 


lassroom 


bohnvior . 


I 


ennth of 


sta 


V to 


be determined ba?;ed 


on 


the 



ind iv idual 



ncedr 



docii men t ed i n t he I F F. 
■f5^- 181 Tlio Individual 
Education Plan must; 

(A) not be used as a 
punitive tool to control 
behavior ; 

(B) attempt to specifically 
detail in writing the 
educatinal and behavioral 
problems in need of 
remediation ; 

(C) be negotiated ivith and 
signed by the student and 
the studei-it's parents or 
guardian. To inplemcnt 
the lEP v;it}iout parental 

the program must 

the procedures 

under the 

for exceptional 

'.."liic]i can be 

tiirough aiiS' 

office (LEA) of 

of Public 



approval , 
follow 
outlined 
policies 
children . 
obtained 
regional 
the Department 
Instruction; 
(D) include t i.'ne--specif ic 
educational and behavioral 
objectives designed to 
reintegrate tlie student 
into the regular class 
upon fulfillment of tl^e 
specified cb j e ctix ' es -r 
goals ■ 

(c) Placement into ASP. 

Only the school principal or 
3 t af f -stJ dirs-igrrtrt^rd try -the 
■ principal his/her designee nay 
authorize placement in the ASP. 

(d) Parental/Guardian 
Involvement . 

(1) In addition to the 

required parental 

involvement included in 
Subparagraph (b) ( £i ) trf t+rirs 
Rule, CS) of this Rule. 

parents of guardians must 
bo notified of their child's 
placement into ASP and the 
notification must include a 
specific request for a 



conf erciice 
parent or 
appropriate 
personnel . 
notification 



between the 

guardian and 

school 

Included in the 

must be an 

explanation of the policies, 

procedures, and rules 

governing the ASP. 

(2) Efforts to initiate 

a parental or guardian 
conferene must be documented 



by copy of a letter and/ or 
by a note placed in the 
child's file shov-ing the 
tine and date of telephone 
contact . 
(e) Exit Criteria. 
V,Tien the principal or his 
designee feels evidence warrants 
leaving the program, 
re-assign.Tient to the regular 
program vjill be made. 

. 1603 EVALUATION AND 

PERFORMANCE STANDARDS 

( a ) Rrcrritrctt C o ur t Rgfr-r i all. . 
Ctnnrt pr^lrit i o n s ky ■ar.y sclio o l 
op vi. Jit ing art I-&S pro pr-mn v. ' ill 
show s r 1- " d u c t i o n erf 2-C' pei cen t: 
VT jTcn cor . ip a r c tt t-o c o ur t i e t i t ionib 
intrtfe by tiTtrt str ho c l d-' r ing -H-rti 
oTtrsT school yjar xn wiri^A rtc i-SS 
pxo gra m vrzrs j p erat i o n^ .-3r-r This 
■g tandard w ill g p ply only t^ 
^rCiio ol s ^iic",. iiig ^rt Ir-as t "t~9" 
irc-iri- b ions, -in t h : bas e yrrcrr o-r 
tiity year "biis r c a ft e r . P ase y ear 
■ire t he la s t full -STrh-croi yctrr 
pr-itrr "to t+re- implemen t i c-n trf tire 

■rb^ C a ) Reduce Suspensions. 
Out-of-school suspensions by any 
school operating a CE.A funded 
ISS program vji t li ti maxiiiiui i i 
leng t li trf s i: ay -erf +Q e c:.secut i T.'e 
xi~y~s rrr l e ss will far? r-c duced by 
S5 pcrc ;n t- ss c om t- .' ;rcd ttr 
■strtrpTm-STcrrs d ur ing •Hrcr -1 ast ftriHr 
•cclTcrcri yc-sT -rrt vdiich rro ISS 
p r ogra m vrrs o pera t ion: ,l-r T l ie 

rr tai ^ idar d will : apply only t-o 
sc h o ol s s-htnrirrg atr leas t +9- 
tt?qrtrfrsTrons in "ttrtr ba se year trr 
any year t he r eaf t er . r hall not 
exceed 15 percent of t he 



school ' s 



average 



daily 



ollment . 

) Reduce E.xnulsions. 



cnr 

lb 

Expulsion s 



( suspension 



e.xclusion from school for more 
nn 1 consecutive days) 



thar 
dui' 



mq 



school year by any 



school operating a CBA funded 
I SS proq " ^am shall not e.xceed 1 
percent of the school's average 



daily enr3l l nent 



Cc 
( 



) Imp 
1 ) Tw 
of s 
ISS 
class 
dccum 
evalu 
retur 
class 
2) A 
must 
refer 
admin 
docum 
stand 
evalu 
stude 
refer 
schoo 



ove Student Behavior, 
enty-five percent 
tudents compleiing the 

v;ill show improved 
room behavior as 
ented by follow-up 
ation one week after 
ning to the regular 



follovj-up evaluation 

be submitted by the 
ring teacher or school 
istrator as 

3ntation for this 
ard. A follow-up 
ation must include the 
nt ' s name, date of 
ral to the alternative 
1 program, reason for 



312 



NORTH C.XROLINA REGISTER 



referral, evaluation of the 
student's classroom behavior 
upon return to the regular 
school program. the 
tcaclier's name, and dnte on 
v;Iiich tlic evaluation wa;j 
copplctcd . 

(d) Reduce Absences. Youth 
served by CBA funded programs 
v;hich require Individual 
Education Plans (lEP) will shov; 
a 25 percent reduction in school 
absences while participating in 
the CEA funded programs as 
compared with tlicir school 
absences during the 12-month 
Ijeriod prior to participation in 
the program. 

(e) Reduce Dropouts. Not 
more than 25 percent of the 
youth 16 years old or older will 
drop out of school while 
participating in CBA funded 
programs v;hich require the lEP. 
This standard will apply only to 
those programs where 10 or more 
youth 16 years or older 
participate during a school 
year . 

(f) Documentation. All 
school related CBA funded 
programs must utilize the 
Quarterly School Program Review 
for school related programs and 
must submit an Annual Program 
Review to provide client 
information for on-going program 
docunontat ion . 

.1604 ORIENTATION AND 

REPORTING REQUIREMENTS 

(a) The Annual Program 
Review must be submitted at the 
close of each school yoai' to the 
CBA Regional Office. 

(b) An annual on-site 
monitoring visit shall bo 
conducted by the CBA regional 
consultant. The Monitoring 
Report signed by the regional 
consultant shall document 
compliance . 

(c) Copies of the Annual 
Program Review and the On-site 
Monitoring Report cliall bo 
provided to the local CBA Tasl; 
Force, the school principal and 
the superintendent of the local 
school .system. 

(d) The ASP program director 
sliall attend at least one CBA 
Task Force meeting for the 
purpose of briefing tlie tasic 
force on the ASP program. 

Ce) The A.SP program director 
or the f^chool principal shall be 
responsible for a faculty 
orientation prior to the start 
up of any new CBA funded ASP 
program . 

+rH- T^Itc asp prxrgr-nt d-ircctor- 
sh all fa-c n ^ spo n sib l c frrr 
p rovi -crirrg a-fc Irctttit- tmrttral- 



pr-ognrsrs 
of -trrc 



I'cpo r t 
sxTj-Kroi fmruitr'T-r 



to Ttii trrenn ber s 



TITLE 1 1 - i:<'SURANCE 

Not iro is h'-n-by given in 
accordance wi'tli G.S. 150B-12 
t'lat the Department of Insurance 
intends to adopt regulations 
cited as 11 NCAC 6 .0700 (.0701 
through .0706). The purpose of 
the proposed regulations is to 
set out Departmental standards 
for tlic Agents' Pre-licensing 
education program. 

TIic propo.';cd effective date of 
this action is December 1, 1986. 



Statutory 
53-41 (6) . 



Auxliority : 



G.S, 



The public liearing v;ill be 
conducted at 10:00 a.m. on 
September 15. 1986 at Hearing 
Room. Third Floor, Dobbs 
Building, 430 Nortli Salisbury 
Street, Raleigh, North Carolina 
2761 1 . 

Comment Procedures : I'Jritten 
comments may be sent to Bill 
Beatv, P. 0. Bo.x 26387. Raleigh, 
North Carolina. 27611. Mr. 
Ecaty may bo contacted by 
calling (919) 733-4935. 



C}[APTER 6 - 



AGENT SERVICES 
DIVISION 



SECTION .0700 



PRE-LICENSING 
ED'JC^TION 



.070 1 GENERAL REQUIREMENTS 

(a) This Rule applies to 
persons attempting to obtain a 
license to solicit Life and/or 
Property and Casulty insurance 
in North Carolina except as 
:";pocif ically exempted by 11 NCAC 
6 .0701 (b) (1 ) through (7) . 

(b) The fcllov.'ing individuals 
sliall be automatically exempt 
from tlie provisions of this 
Chapter : 

(1 ) Chartered Life 
Underwriter; or 

(2) Chartered Property and 
Casualty Underv;r iter ; or 

(3) Life Underwriter Training 
Council graduate; or 

(4) A^mcrican Ini^itituto of 
Property ai'd Liability 
Underwriter graduate; or 

(5! Institute of Insurance 
of Arcrica graduate; ox' 

(G) Licensed in North 

Carolina for Life and/or 
Property and Casualty within 
"6 months preceding the date 
of applicatioii for a new 
license in that line of 
insurance; or 



NORTH CAROLINA REGISTER 



313 



(7) Upon furnirhing of 

letters oi' clearance 
certifying that tlie 
c.pplicp.nt has been licensed 
for the same line of 
insurance v.'ithin tl;e 
previous 12 nontlis in 
another state, such license 
to have been granted upon 
successful passing of a 
v.'rittcn ox-^i'iinat ion given by 
ai\ insurance department of a 
state . 
(c) In this Ch.aptor, unless 

otherivise noted tlie following 

definitions v^ill apply: 

(1) "Classroom Scliool" shall 
moan Pro-licensing Education 
sponsored by a company, 
association or education 
institution and provided 
through instruction by 
eitlicr a Load or Assistant 
Instructor utilizing a 
teaching cuj.'riculum based on 
the published Ilorth Carolina 
Course Coiitcnt Outline. 

(2) "Correspondence Course" 
shall mean rlome , self, 
individual . and 
correrpondcnco study 
utilizing programmed text 
instruction . 

(3) " Cori'espondcnce School" 
sliall mean Pre-liccnsir.g 
Education sponsored by a 
conpany, association or 
educational institubicii and 
provided througli co.r.plction 
of correspondence course 
mator.ials v;liich have been 
approved by the Commissioner 
of Insurance witli students 
individually supervised by 
approved Proctors. 

(4) "Program Director" shall 
mean tlie individual 
associated vjith an approved 
school v;ho is responsible 
for administration of tliat 
school according to t)ie 
Administrative Requirements 
of the Pre-liccnsir.g 
Education Program of the 
fiorth Carolina Department of 
Insurance . 

(5) "Lead Instructor" shall 
mean an approved instructor 
in classroom scliools v.lio is 
responsible for preparation 
and presentation of lesson 
plans to assure that the 
North Carolina Course 
Content Outl r'ne is taught to 
that school's students a:id 
prepares a final course 
examination. This 
individual directs and 
supervises teac]iing by 
Assistant Instructors. 

(6) "Assistant Instructor" 
shall mean a person v.-ho 
teaches students in the 
classroom utilizing tiiat 



school ' s curriculum under 
supervision of the Lead 
Instructor and Program 
Director . 
(7 J "Proctor" shall mean a 
individual approved by the 
Department of Insurance to 
assist and supervise 
students in completion of 
approved Correspondence 
School courses . 

.0702 SCliOOLS 

(a) This Rule applies to all 
schools offering life and 
property aiid casualty 
p re-licensing courses prescribed 
by General Statute 58-41 through 
5S-41.'I. All such scliools 
desiring to conduct such courses 
must bo approved by the North 
Carolina Department of Insurance 
prior to commencement of any 
course . 

Cb) Schools seeking approval 
to conduct Life and for Property 
and Casualty pre-licensing 
courses must make written 
application to the Commissioner 
upon a form prescribed by the 
Department of Insurance. 

(c) After due investigation 
and consideration, approval 
sliall be granted to the school 
v.'hen it is shovjn to the 
satisfaction of the Commissioner 
that : 

( ] ) the sc'iool has submitted 
all information z'equired by 
the Commissioner; and 

(2) tlie course(s) to be 
conducted complies with Rule 
.0704 of this Chapter; and 

(3) the instructor ( s ) or 
Proctorfs) for the course(s) 
has been certified by the 
Commissioner in accordance 
with Rules .0705 or .0706 of 
this Chapter . 

(d) The following shall apply 
for the approval for 
pre-licensing education schools: 

( 1 ) Approval extends only to 
the coursc(s) and 
locat ion C s ) reported in the 
application for school 
approval . 

(2) The Commissioner's 
approval of schools shall 
terminate on June 30 ne.xt 
following the date of 
issuance . 

(3) Schools must renew 
annually their approval to 
conduct Life and for 
Property and Casualty 
pro-licensing courses by 
submitting an application 
for approval not later than 
May 31 of each year. 

(e) The Commissioner may deny, 
withdi-aw or suspend approval of 
any school upon finding that : 

( 1 ) Such school has refused 



314 



NORTH CAROLINA REGISTER 



or failed to comply with any 
of the provisions of Rules 
.0702, .0703, .0704, .0705, 
or .0706 of those 
regulations; or 

(2) Any school official or 
instructor has obtained or 
used, or attempted to obtain 
or use. in any maimer or 
form, N.C. Life or Property 
and Casualty licensing 
examination questions; or 

(3) Such school's students 
have a licensing e.xamination 
performance record which is 
determined by the 
Commissioner to be 
substantially below the 
performance record of all 
first-time e.xamination 
candidates . 

(f) In all proceedings to 
withdraw or deny approval the 
provisions of the General 
Statutes shall be applicable. 

(g) When a school's approval 
is discontinued, the procedure 
for reinstatement will be to 
apply as a new school with 
attac]iments describing reasons 
that the school is now eligible 
for reconsideration. The 
Commissioner may require an 
investigation before new 
approval is granted. 

(h) The follov;ing shall apply 
for changes during the academic 
year : 

(1) Classroom schools must 
obtain advance approval from 
the Commissioner for changes 
of location(s) vihere courses 
are to be conducted or 
changes of Instructors or 
Proctors. Requests for 
approval of such changes 
must be in writing. 

(2) Approved schools which 
inte".d to terminate their 
program must notify the 
Commissioner in v;riting. 

(3) Schools should notify the 
Commissioner of change of 
textbook. 

(4) The Program Director 
shall notify the 
Commissioner in writing at 
the time an instructor 
resigns or censes to be 
c:jSociated with the scliool . 

(i) An approved scliool may 
utilize for advertising or 
promotional purposes licensing 
e.xamination perf or.r.ance data 
provided to tlic school by the 
Conmisnioner , provided that any 
disclosure of such data by the 
school must be accurate, must be 
presented in a manner that is 
not misleading, and: 

(1) Be limited to the 

annual examination 

performance data for tlie 
particular school and for 



all e.xamination candidates 
in the State ; 

(2) Include the type of 
e.xamination. the time period 
covered, the number of 
first-time candidates 
examined. and either tlie 
number or percentage of 
first-time candidates 
passing the e.xamination; and 

(3) Bo reviewed and approved 
by tlie Commissioner prior to 
publication . 

(j) The following requirements 
are to be met regarding 
facilities and equipment of 
classroom schools: 

(1) Schools shall either own 
their facilities or possess 
a lease or other agreement 
for tlie use of facilities. 
If facilities are to be 
leased or rented, the school 
need not execute such lease 
or other agreement until 
notification is received 
that the school application 
has been approved; however, 
such lease or agreement must 
be executed and a copy 
provided to the Commissioner 
prior to the first scheduled 
class . 
(.2) All schools facilities 
and equipment shall have 
been found by appropriate 
local building, heating and 
fire inspectors to be in 
compliance with all 
applicable local, state and 
federal laws and regulations 
regarding safety and 
sanitation . 

(3) Classrooms shall be of 
sufficient size to 
accommodate comfortably all 
students enrolled in a 
course, shall have adequate 
light, heat, cooling, and 
ventilation; and shall be 
free of distractions V'/hich 
would disrupt class 
sessions . 

(4) Classrooms shall contain, 
as a minimum, a 
challcboard/f lip cliart/grease 
board and student desks or 
worktables sufficient to 
accommodate all students 
enrolled in a course. 

(5) Scl'.ool facilities shall 
be ilesigned and equipped in 
sucli manner as will assure 
full and free access for use 
of the facilities by 
handicapped persons as 
required by General Statute 
168-2. Otherwise, the 
school must certify that 
school personnel will be 
available before, during and 
after scheduled classes to 
assist any handicapped 
person as may be necessary. 



NORTH CAROLINA REGISTER 



315 



(k) One person must be 
designated as the Program 
Director of the insurance 
pre-liccnsiug program. The 
Progran Director is defined as 
the person responsible for 
pre-licensing program 

administrative matters such as 
program development, scheduling 
of classes, advertising, 
maintaining facilities and 
equipment. recordkeeping and 
general supervision of tlie 
instruct io;ial pi'ogram. 

(1) Schools shall publish and 
provide to all students prior to 
enrollment a bulletin or similar 
official publication which is 
certified by tlie Program 
Director as being true and 
correct with respect to content, 
and wliich contains, as a 
minimum, t'ne following 
information : 

(1) Name of school and 
publication date, 

(2) Name of sponsor, 

(3) All associated costs, 

(4) Detailed outline or 
description of all courses 
offered . 

(m) Scliools sliall file with 
the Commissioner information 
giving exact dates, times, and 
location for each scheduled 
pre-licensing class. This can 
bo submitted either: 
( 1 ) For a school ' s 

quarter/semester, and 
(2) No later than one week 
prior to the first class 
meeting of each 
pro-licensing course. 
(n) Classroom schools shall 
retain the following on file for 
a minimum of 3 years: 

(1) Class schedules, 

(2) Advertisements, 

(3) Bulletins, catalogues, 
and other official 
publ ications , 

C4) Grade reports, 

C5) Attendance records, 

(5) Master copy of each 
final course e.xamiiiat ion , 
and such file copy shall 
indicate the answer key, tlie 
school name, course 
location, course dates and 
name of instructor. 

(7) List of participating 

student names and Social 
Security numbers for each 
class, with tlie name of tlie 
instructor responsible for 
that class provided on tlio 
list. All files shall be 
made available to the 
Commissioner of Insurance 
upon request . 
(o) Corresponrlcnce schools 
shall retain the following on 
file for a minimum of 3 years: 
(1) Advertisements, 



(2) Bulletins, catalogues 
and other official 
publications , 

(3) Grade reports, and 

(4) A list of student names. 
Social Security numbers, and 
proctor of students who 
successfully complete the 
approved course. All files 
shall be made available to 
the Commissioner of 
Insurance upon request . 

(p) Senior level baccalaureate 
degree granting institutions 
which arc constituent members of 
tlie University of North 
Carolina, or are authorized to 
grant degrees tlirough on campus 
programs witliin the State of 
North Carolina and which offer 
degree credit courses in General 
Insurance, Life Insurance or 
Property and Casualty Insurance 
sliall be deemed to meet the 
requirements of Rule .0702 
through compliance with their 
standard procedures for the 
offering and recordkeeping for 
such on-campus credit courses. 

(q) In the event of an 
emergency created by illness, 
injury or death of instructors, 
the Program Director can utilize 
non-approved instructors to 
complete the single course 
offering. The school shall 
thereafter suspend operation 
until approved instructors are 
available to conduct classes. 

.0703 PROGPvAK DIRECTORS 

(a) This Rule applies to 
Program Directors of Insurance 
pre-licensing schools as defined 
in Rule .0702 of this Chapter. 
All such Program Directors of 
this Chapter must be approved by 
the Commissioner in accordance 
with the provisions of this 
Rule. 

(b) Persons desiring approval 
to direct an Insurance 
pve-1 icensing program shall make 
v;ritten application to the 
Commissioner upon a form 
prescribed by the Commissioner. 

(c) Applications must be 
endorsed by the President/Chief 
Operating Officer of the 
sponsoring educational 
institution/company. If tlie 
employing scliool is not 
currently approved by tiie 
Co.-.imissioner , applications for 
Program Director approval should 
be submitted along witl^ the 
application for scliool approval. 

(d) The Commissioner shall 
approve an applicant as a 
Program Director upon finding 
that the applicant is 
recommended by the 
President/Chief Operating 
Officer of the sponsoring 



316 



NORTH CAROLINA REGISTER 



educational institution/company, 
has submitted all information 
required by the Conmissioncr , is 
possessed of good character and 
reputation, and possesses the 
qualifications described in this 
Rule: 

(1) Hold a baccalaureate or 
higher degree and have at 
least two years experience 
as an instructor of 
insurance or as an 
educational administrator; 
or 

(2) Hold a baccalaureate or 
higher degree and have at 
least six years of 
experience in the insurance 
industry with a minimum of 
two years experience in 
insurance management; or 

(3) Possess qualifications 
whicli are four.d by the 
Commissioner to be 
substantially equivalent to 
those described. 

(e) Program Director approval 
will be valid for an indefinite 
period subject to future changes 
in laws or regulations regarding 
approval of Program Directors. 

(f) The Commissioner may deny, 
revoke, or suspend tlie approval 
of any Program Director upon 
finding that : 

(1) The Program Director 
fails to meet the criteria 
for approval provided by 
these Regulations; or 

(2) The Program Director has 
failed to comply with the 
Commissioner ' s 

Administrative Requirements 
regarding Insurance 

pre-licensing schools or 
courses; or 

(3) The Program Director's 
employment has been 
terminated by any sponsoring 
educational 
institution/company; or 

(4) The Program Director 
provided false information 
to the Commissioner when 
making application for 
approval; or 

(5) The Program Director's 
insurance license has been 
revoked or suspended; or 

(5) The Program Director has 
obtained or used, or 
attempted to obtain or use, 
in any manner or form, Ncrtli 
Carolina Insurance licensing 
examination questions. 

(7) The Program Director has 
failed to utilize an 
acceptable level of 
perfoi-mance in directing the 
Insurance Pre-licensing 
Program . 

(g) In all proceedings to 
deny, revoke, or suspend 
approval, the provisions of 



Chapter 15CB of tlie General 
Statutes shall bo applicable. 

(li) When a Program Director's 
approval is discorit inued, the 
procedure for reinstatcmnt will 
be to apply as a ncv; Program 
Director witli attachments 
describing reasons that he/she 
is now eligible for 
j'oconsideration . The 

Commissioner may require an 
investigation before new 
approval is granted. 

Ci) All approved Program 
Directors must inform the 
Com.iiissioner of any change in 
program affiliation by filing an 
application for Program Director 
approval prior to directing a 
new program. 

(j) Full-time faculty of 
fully accredited senior level 
colleges and universities who 
carry Risk and Insurance as part 
of their regular teaching load 
of academic courses shall be 
deemed to meet the requirements 
of Rule .0703. 

.0704 COURSES 

(a) Tliis establishes minimum 
standards for Life and Health 
and/or Property and Casualty 
Pre-licensing courses prescribed 
by General Statute 58-41(6) and 
applies to all approved schools 
conducting such courses. 

(b) Insurance pro-licensing 
programs must consist of one or 
both of the follovjing separate 
courses : 

C 1 ) Life and Health Insurance 
C2) Property and Casualty 
Insurance 

(c) The ma.ximum length of an 
approved pre-licensing education 
course is at the discretion of 
the pre-licensing school. In no 
event may a school offer a 
couT-^c of less tlian 50 iiours . 

(d) The following requirements 
arc course standards: 

( 1 ) All courses sliall consist 
of instruction in the 
subject areas covered in the 
ti'orth Carolina Department of 
Insurance Course Content 
Outline. 

t2) Courses may also include 
coverage of related subject 
area.'; not presci'ibcd by the 
Commissioner, however, such 
co;irae3 must provide 
additional class time (above 
minimum requirement stated 
in Rule .0704 (c) of this 
Rule ) for tlie coverage of 
such subject areas. 

(3) Pre-licensing schools 

and courses are intended for 
instructional purposes only 
and not for promoting the 
interests of or recruiting 



NORTH CAROLINA REGISTER 



317 



employees for any particular 
insurance agency or company. 

(4) Schools must estc.blish 
and enforce academic 
standards for course 
completion \.'hjch reasonably 
assure that students 
receiving a passing grade 
possess adequate knov;lcdge 
and understanding of tlie 
subject areas prescribed for 
tlie course. In any course 
for v.'hich college credit is 
awarded, the passing grade 
for such course must be the 
same as that grade vihich is 
considered passing under the 
school's uniform grading 
system . 

(5) Scliools must conduct 
comprehensive course 
examinations v.'hich cover all 
subject areas prescribed by 
the Commissioner for each 
course. The time for this 
examination must be in 
addition to the minimum 30 
hours of instruction 
required. Schools may allov; 
a student to make up a 
missed examination or to 
retake a failed examination 
in accordance with policies 
adopted by tJie scliool . 

(6) Students must attend a 
minimu.m of tliirty hours of 
instruction or, if greater, 
at least 80 percent of all 
scheduled class hours in any 
course. Schools may not 
avjard a certificate of 
completion to students wlio 
do not satisfy the 
attendance requirement. 

(e) The follov/ing requirements 
are to be met for sclicduling 
purposes : 

(1) Class meetings or 
correspondence courses shall 
be limited to a ma.ximum of 8 
hours of instruction in any 
given day. 

(2) Classroom, courses must 
have fi.xed beginning and 
ending dates and may not be 
conducted on an 
open-enti y/open-exit basis . 

(3) Correspondence course 
begins v/ith tlie introductory 
session betv;ccn proctor and 
student and ends upon the 
talcing of the final 
e.xanination and the final 
review session with the 
proctor . 

(f) The follov.'ing sliall apply 
to the use of text books: 

(1) Choice of classroom 
course te.xt is at the 
discretion of cacli 
individual scnool . 

(2) Correspondence courses 
must be approved by the 
Commissioner before use. 



Cg) All insurance 
pro-licensing classroom school 
courses must be taught by 
Instructors who have been 
approved by the Commissioner in 
accordance v;ith the provisions 
of Rule .0705 of this Chapter. 
A Lead Instructor must be 
designated for cacli course 
location . 

(h) All insurance 
pre-licensing correspondence 
courses must be monitored by 
Proctors v.'ho have been approved 
by tlie Commissioner in 
accordance v;ith the provisions 
of Rule .0706 of this Chapter. 
A Proctor must be designated for 
eacii correspondence course 
student . 

(i) The following 
certification of course 
completion procedures shall 
apply : 

(1) Schools shall furnish 
each student who 
successfully completes as 
Insurance pre-licensing 
course an official 
certificate on the form 
prescribed by the 
Commissioner. Certificates 
may not be issued to 
students prior to the 
successful completion of the 
course's comprehensive final 
examination . 

(2) Certificates of 
successful course completion 
for correspondence schools 
shall be furnished by the 
publisher of the 
correspondence course on the 
form prescribed by the 
Commissioner. Certificates 
may not be issued to 
students pi'ior to successful 
completion of all course 
requirements . 

(3) A Certificate of 
Pre-licensing Course 
Completion form shall be 
issued for each separate 
course successfully passed 
by a student. Certificates 
presented at the state 
licensing examination site 
which indicate completion of 
two courses will be held to 
be invalid. 

(4) A Certificate of 
Pre-licensing Course 
Completion shall be valid 
for access to the North 
Carolina Licensing 
E.xamination for 12 montlis. 
If a license applicant does 
not successfully pass the 
Licensing E.xamination within 
12 months, the person must 
again complete a 
Pre-licensing Education 
Course to bo eligible for 
c.xaminat ion . 



NORT}t CAROLINA REGISTER 



(j) On-campus academic credit 
courses offered as part of a 
degree program at senior level 
fully accredited colleges and 
universities shall be deemed to 
meet the requirement of this 
Rule .0704. 

.0705 INSTRUCTORS 

(a) This Rule applies to 
Instructors of Insurance 
pre-licensing courses as defined 
in Rule .0704 of this Chapter. 
All such Instructors of this 
Chapter must be approved by the 
Commissioner in accordance with 
the provisions of this Rule. 

(b) Persons desiring approval 
to teach Insurance pre-licensing 
courses shall make written 
application to the Commissioner 
upon a form prescribed by the 
Commissioner . 

(c) Applications must be 
endorsed by the Progi'am Director 
of the employing scliool . If the 
employing school is not 
currently approved by tlic 
Commissioner, Instructor 
applications sliould be submitted 
along with the application for 
school approval . 

(d) The Commissioner shall 
approve an applicant as a LEAD 
INSTRUCTOR upon finding that the 
applicant is recom.iicnded by an 
approved school, has submitted 
all information required by the 
Commissioner, is possessed of 
good character and reputation, 
and possesses the appropriate 
qualifications described in this 
Rule for each course for vjhich 
approval is sought : 

(1) Chartered Life 
Underwriter (CLU), Certified 
Property and Casualty 
Underwriter (CPCU), 
Chartered Financial 
Counselor (ChFC), Fellow 
Life Management Institute 
(FLMI), Attorney ( LLB or 
JD); or 

(2) Five years of experience 
in tlio insurance industry 
and designation as 
Accredited Advisor in 
Insurance (AAI), Fraternal 
Insurance Counselor (FIC). 
or Life Underv;ritcr Training 
Counsel Fellow (LUTCF); or 

(3) Three years of experience 
teaching insurance courses; 
or 

(4) Eight years experience in 
the insurance industry; or 

(5) A combination of training 
and e.xperience among .0705 
(d) (1) through (4) to 
satisfy the Comnissioner of 
his/her qualification to be 
a Lead Instructor. 

(e) The Commissioner shall 



approve an applicant to teach 
the courses listed in this Rule, 
as an ASSISTANT INSTRUCTOR, 
based on the criteria in Rule 
.0705 (d) plus: 

(1 ) Life and ]Icalth 

Insurance : Three years 
e.xperience in tlie Life and 
Health industry. 

(2) Property and Casualty 
Insurance : Three years 
e.xperience in the Property 
and Casualty Insurance 
industry . 

(3) Possess qualifications 
v;hich are found by tlie 
Commissioner to be 
substantially equivalent to 
those described in ( 1 ) and 
(2) . 

(f) The Commissioner may 
approve an applicant to teach 
the Insurance pre-licensing 
courses as a Lead or Assistant 
Instructor if sucli applicant has 
a graduate dogi-co or graduate 
level course credit in insurance 
and risk management, or is found 
by tlie Commissioner to possess 
equivalent qualifications. 

(g) Applicants s'nall be 
approved separately for each 
course taught in the Insurance 
pre-licensing curriculum. 

(h) Approval of an Instructor 
for a school continues until 
resignation by the Instructor, 
revocation by the Commissioner » 
or termination of that school. 

(i) The Commissioner may deny, 
revoke, or suspend the approval 
of any Instructor upon finding 
that: 

( 1 ) The Instructor fails to 
meet the criteria for 
approval provided by these 
regulations; or 

(2) The Instructor has failed 
to comply with the 
Commissioner's regulations 
regarding 
pre-licensing 
schools ; or 

(3) The Instructor's 
employment has been 
terminated l)y any school 
approved by tlic Commissioner 
on tlic grounds of 
i;iconpetence or failure to 
comply with institutional 
policies and procedures; or 

(4) The Instructor provided 
false inf orr.iat ion to the 
Commissioner wlion making 
application for approval; or 

(5) Tiie Instructor's 
insurance license has been 
revoked or suspended; or 

(6) Tlie Instructor has 
obtained or used, or 
attempted to obtain or use, 
in any manner or form, North 
Carolina Insurance licensing 
examination questions; or 



Insurance 
courses or 



NORTH CAROLINA REGISTER 



;i9 



(7) The Instructor has failed 
to employ acceptable 
instructional principles and 
methods . 

(j) In all proceedings to 
deny, revoke, or suspend 
approval, the provisions of 
Chapter 150 A of the General 
Statutes shall be applicable. 

(k) When a Instructor's 
approval is discontinued, the 
procedure for reinstatement v;ill 
be to apply as a new Instructor 
with attachments describing 
reasons tliat he/she is now 
eligible for reconsideration. 
The Commissioner may require an 
investigation before new 
approval is granted. 

(1) All approved Instructors 
must inform the Commissioner of 
a.iy change in school affiliation 
by filing an application for 
Instructor/Proctor approval 
prior to instructing in the new 
school . 

(m ) Full-time faculty of fully 
accredited senior level colleges 
and universities who carry Risk 
and Insurance as part of their 
regular teaching load of 
academic courses sliall be deemed 
to meet the requirements of Rule 
.0705. 

.0706 PROCTORS 

(a) This Rule applies to 
Proctors of Insurance 
pre-licensing courses as defined 
in Rule .0704 of this Chapter. 
All such Proctors must be 
approved by the Commissioner in 
accordance with the provisions 
of this Rule . 

(b) Persons desiring to be 
approved as Proctors shall malce 
written application upon a form 
prescribed by tlio Commissioner. 

(c) Applications must be 
endorsed by the Program Director 
of the school . If the school is 
not currently approved by the 
Commissioner. Proctor 
applications should be submitted 
along with the application for 
school approval . 

(d) The Commissioner shall 
approve an applicant to monitor 
courses as a Proctor upon 
finding that the applicant is 
recommended by an approved 
school, has submitted all 
information required by the 
Cornmissionor , is possessed of 
good character and reputation, 
has provided evidence of 
successful completion of each 
correspondence course for vjhich 
he/she is to bo approved as 
Proctor, and possesses the 
appropriate qualifications 
described below for each course 
for which approved is sought : 

( 1 ) Has three years 



experience in the Life and 
Health insurance industry to 
Proctor Life and Health 
Insurance courses; or 
(2) Has three years 

experience in the Property 
and Casualty insurance 
industry to Proctor Property 
and Casualty Insurance 
courses . 

(e) Applicants shall be 
approved for each separate 
course in the Insurance 
pre-licensing curriculum. 

(f) The Commissioner may 
approve an applicant to 
administer correspondence 
courses as a Proctor if such 
applicant has a graduate degree 
or graduate level course credit 
in insurance and risk 
management . or is found by the 
Commissioner to possess 
equivalent qualifications. 

Cg) Approval of a Proctor for 
a school continues until 
resignation by the Proctor, 
revocation by the Commissioner, 
or termination of the school or 
course . 

Ch) A Proctor's duties are 
prescribed by the Commissioner 
and a description may be 
obtained by v;riting to the North 
Carolina Department of 
Insurance, Agent Services 
Division, Post Office Box 26267, 
Raleigh, North Carolina, 27611. 

(i) The Commissioner may deny, 
revoke or suspend the approval 
of any Proctor upon finding 
that: 

(1) The Proctor fails to meet 
the criteria for approval 
provided by these 
regulations; or 

(2) The Proctor has failed to 
comply with the 
Commissioner's regulations 
regarding Insurance 
correspondence courses or 
schools; or 

(3) The Proctor's employment 
has been terminated by the 
school ; or 

(4) The Proctor falsified 
information on any form or 
application; or 

(5) The Proctor's insurance 
licens3 has been revoked or 
suspended; or 

(6) The Proctor has obtained 
or used, or attempted to 
obtain or use. in any manner 
or form. North Carolina 
Insurance licensing 
examination questions; or 

(7) The Proctor has failed to 
utilize an acceptable level 
of performance in overseeing 
pre-licensing course(s). 

Cj) In all proceedings to 
deny. revoke, or suspend 
approval, the provisions of 



320 



NORTH CAROLINA REGISTER 



Chapter 150A of the Genezal 
Statutes shall be applicable. 

(k) When a Proctor's approval 
is discontinued, the procedure 
for reinstatement will be to 
apply as a neij Proctor witji 
attachments describing reasons 
that he/she is now eligible for 
reconsideration. The 

Commissioner may require an 
investigation before ncv; 
approval is granted. 

CI) All approved Procters must 
inform the Commissioner of any 
changes in school affiliation by 
filing an application for 
Instructor/Proctor approval 
prior to proctoring in the new 
school . 

(m) Full-time faculty of fully 
accredited senior level colleges 
and universities who carry Risk 
and Insurance as part of their 
regular teaching load of 
academic courses shall be deemed 
to meet the requirements of Rule 
.0706. 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the Insurance, N. C. 
Building Code Council intends to 
amend regulations cited as 11 
NCAC 8 .0204-. 0207. The purpose 
of the proposed regulations is 
to amend to North Carolina State 
Building Code, Volumes I, I-B, 
II and III. 

The proposed effective date of 
this action is November 1, 1986. 



Statutory 
143-138. 



Authority : 



G.S. 



The public hearing will be 
conducted at 10:00 a.m. on 
September 9, 1986 at Thomas W. 
Simpson Administration Building, 
Asheville-Buncombe Technical 
College, 340 Victoria Road, 
Asheville, NC . 

Comment Procedures : Written 
comments should be siibmittcd to 
Lee Hauser, Engineering 
Division, Dept . of Insurance, P. 
0. Box 26387, Raleigh, NC 27611. 

CHAPTER 8 - ENGINEERING AND 
BUILDING CODES 

SECTION - .0200 NORTH CAROLINA 
STATE BUILDING CODE 

.0204 BUILDING CODE: VOLUME I: 
GENERAL CONSTRUCTION 

This volume of the State 
Building Code contains general 
administrative procedures, 
general statutes pertaining to 
enforcement of the code, appeals 
procedures, procedures for 
amending the code and procedures 



for approval of local ordinances 
wliich may be at variance with 
tl^e code. In addition the 
volume contains ^he technical 
general construction 

requirements, references to 
technical standards adopted as 
part of the code, and other 
pertinent information. The 
North Carolina Building Code 
Council adopts by reference 
Voluir.e I, General Construction, 
North Carolina State Building 
Code, 1978 Edition with 
amendments throufjh June +0-r 
4^?8&^ September 9, 1986. 

.0205 BUILDING CODE: 

VOLUME I-B: UNIFORM 
RESIDENTIAL CODE 
The "Uniform Residential 
Building Code" volume contains 
general construction 

requirements for one and two 
family dwellings, including 
details as to the size, spacing 
and span of structural members, 
and other pertinent facts which 
do not require an architect or 
an engineer to design or advise. 
The North Carolina Building Code 
Council adopts by reference 
Volume I-B, Uniform Residential 
Building Code, 1968 Edition with 
amendments through June 10/ 
19 6.- September 9. 1986. 

.0206 BUILDING CODE: 

VOLUME II: PLUMBING 

The plumbing volume of the 
building code contains general 
administrative procedures, 
general statutes pertaining to 
enforcement of the code, appeals 
procedures, procedures for 
amendment of the code, 
procedures for approval of local 
ordinances, the technical 
provisions for installation of 
plumbing systems, and other 
pertinent information. The 
North Carolina Building Code 
Council adopts by reference 
Volume II, Plumbing, North 
Carolina State Building Code, 
1980 Edition with amendments 
through dtrrrc -l-O-r 1 900 . 
September 9, 1986. 

.0207 BUILDING CODE: 

VOLUME III: HEATING: 
AIR CONDITIONING: 
REFRIGERATION AND 
VENTILATION 
This volume contains general 
administrative procedures, 
general statutes pertaining to 
enforcement of the code, 
procedures for appeals and 
amendments to the codes, and 
procedures for approval of local 
ordinances . Technical 

provisions arc also contained 
concerning the installation of 



NORTH CAROLINA REGISTER 



321 



heating, air conditioning, Tho 

refrigeration nnd ventilation for 

equipment. The North Carolina may 

Building Code Council adopts by addr 

reference Volume III, Heating. Cri 

Air Condit io}iing, Refrigeration Divi 

and Ventilation. North Carolina Dcpa 

State Building Code, 1980 Horg 

Edition witli amendments tlirough Appc 

June +9-r +9£<y-T September 9. Drav; 

1986. Caro 



proposed rules are available 
public inspection and copies 
be obtained at the follov;ing 
OSS : 

minal Justice Standards 
sion. North Carolina 
rtment of Justice, 1 West 
an Street, Room 15, Court of 
als Building, Post Office 
er 149, Raleigh, North 
lina 27602. 



TITLE 12 



DEPARTMENT OF JUSTICE 



Notice is hereby given in 
accordance with G.S. 150B-12 
that the Criminal Justice 
Education and Training Standards 
Commission intends to adopt and 
amend regulations cited as 12 
NCAC 9A .0103; 9U .0115, .0205, 
0211, .0218, 



.0206, 
.0219, 
.0229, 
.0304, 
.0410, 
.0416: 
of the 



,0210, 
,0226, 
,0230, 
,0305, 
,0413, 



.0227, .0228, 
,0231, .0232, 
,0403, .0404, 
,0414, .0415, 
9C .0404. The purpose 
proposed regulations is 
to : ( 1 ) adopt or amend mandatory 
basic training courses and 
standards for Correctional 
Officers, Wildlife Enforcement 
Officers and Probation/Parole 
Intensive Officers; (2) to adopt 
Corrections specialized 

instructor training courses for 
firearms and unarmed 
self-defense as well as 
procedures for obtaining 
speciality instructor 

certification in these topical 
areas; (3) to adopt course 
delivery standards and testing 
standards for basic instructor 
training; (4) to establish 
specialized instructor curricula 
and course delivery standards 
for Law Enforcement firearms, 
driving, defensive tactics and 
radar instructor courses; and, 
(5) to adopt procedures for 
granting Commission recognition 
to "pilot" course offerings. 

The proposed effective date of 
this action is Jr.nuary 1, 1987. 



Statutory Authority: 
17C-2; 17C-6; 17C-10. 



G.S. 



The public hearing will be 
conducted at 1 ;00 p.m. on 
September 18, 1986 at City 
Council Chambers, Cary Municipal 
Building, Cary, North Carolina. 

Comment Procedures: Any person 
interested in thece rules may 
present oral or vjritten comments 
relevant to tlie proposed action 
at the Public Rule-Making 
Hearing. Written stat'Oments not 
presented at cl^o liearing sliould 
be directed to tlie undersigned. 



SUBCHAPTER 9A - CRIMINAL 

JUSTICE EDUCATION AND 
TRAINING STANDARDS COMMISSION 

SECTION .0100 - COMMISSION 
ORGANIZATION AND PROCEDURES 

.0103 DEFINITIONS 
The following definitions 
apply tliroughout this Chapter, 
except as modified in 12 NCAC 9A 
.0107 for the purpose of the 
commission's rule-making and 
administrative hearing 

procedures : 
( 21 ) "Pilot Courses" means 



tliose courses 


developed 


consistent 


with 


the 


curriculum 


development pol 


icy 


adopted bv 


the commission 


on 


Mav 30. 1985. 


This pol 


icy 


shall be a 


dminist 


ered bv 


the 


Educat ion 


and 


Training 


Committee 


of the 


commission 


consistent 


v/ith 


Rule 


9C 



.0404. 

122 J RE NUMB E R PRESENT 

(21 ) THROUGH (23) 



(25) 



'Probat ion/Parole 



Intensive Officer" means an 
e mployee of the Division of 
Advilt Probat ion and Parole 



other 



than 



regular 



probat ion/parole 
probat ion/ parole 



officer , 
intake 



officer, and probation/parole 
officer-surveillance v;ho is 
duly sworn. empowered with 
the autliority of arrest and 

is an authorized 

representative of the courts 
of North Carolina and the 
Department of Correction. 
Division of Adult Probation 
and Parole, whose duties 



include 



supervising. 



invest iaatina. 



reporting ■ 



counseling, treating. 



and 



surveillance 



of 



serious 



offenders 



intensive 



probation and parole program 
operated bv the Division of 
Adult Probation and Parole 
i-jho serves a 



the lead 



offic e r in such a unit. 
(26) Re-number present 



( 24) through (32) 

SUBCHAPTER 9B - STANDARDS 
FOR CRIMINAL JUSTICE 
EMPLOYMENT: EDUCATION: AND 
TRAINING 



322 



NORTH CAROLINA REGISTER 



SECTION .0100 - MINIMUM 

STANDARDS FOR CRIMINAL 
JUSTICE EMPLOYMENT 

.0115 MINIMUM STANDARDS 
PROBATION/PAROLE 
INTENSIVE OFFICER 

In addition to the the 
requirements for criminal 
justice officers contained in 
Rule .0101 of this Section, 
every probation/parole intensive 
officer employed by an agency in 
North Carolina shall be a 
graduated of an accredited 
college or university and have 
attained at least the 
baccalaureate degree. 

SECTION .0200- MINIMUM STANDARDS 

FOR CRIMINAL JUSTICE 

SCHOOLS AND CRIMINAL 

JUSTICE TRAINING PROGRAMS 

OR COURSES OF INSTRUCTION 

.0205 BASIC TRAINING--LAW 

ENFORCEMENT OFFICERS 
■(-f^ -in lieu erf the 
re quiremen t s trf Parag r aphs -fb-^ 
and (c ) trf thi^ Rule , offic e rs 
succesiurully co m pl et in g a Pil o t 
E^ asi - fccTW Enf o rcem e n t T r aining 
C o urse a p proved by -tire Basic 
Traini ng Consor t ium, or* 

au t lior ized 
i t i o ns o-f said course , 
shall he deemed -t-o hav e 
sa t isfied the requi r emen t s xr£ 
■bhirs aec bion . 

.0206 BASIC TRAINING: 

CORRECTIONAL OFFICERS 
(b) Each basic training 
course for correctional officers 
shall include the following 
identified topic areas and 
minimum instructional hours for 
each area; however, the director 
is authorized to permit 
modification of the topical 
areas and minimum instructional 
hours, not inconsistent vjith a 
minimum of 160 hours of 
instruction, on an interim basis 
with such modifications to be 
submitted to the Standards 
Committee and the full 
commission at their next 
regularly scheduled meeting: 

-(-+-)■ Tht? Divisi o n xr£ Pri so ns 

Empl o ye e 2 Hours 

(2 ) Overview o:f ±h^ 
De p ar tm en t erf 

Correc t ion 2 H o u r s 

-(-3-)- In t r o d tt c t i o n -to Cus t ody 



■aird S ecur i 'by 
■t~4~)" Contraband 

Co nt ro l 
(5 ) Techniques erf 



■f«- R-±o± Ba to n 
ttS- Ri o t Control 
Clieiii:icals 



2 H o urs 



2 Hours 



H o u r s 

Hou rs 



-f9-> Firs t Aid 
-f-KH- Supervi sion xrf 



-(-H-> 



:tr ain t : 



(12) T r ansp o r t ii rg 
Inmat c s 



2+ H o u rs 
e H o urs 



2 Hours 
4 Hours 



-^K7^- ¥xra anxi -Htc 

t-aw 4 Hours 

( 15 ) D e ha^i - i e r Q Hou r s 
-H-5^ P r is on 

S ociet y 2 Hou r s 

(17) Transac t ional 

A nalysis B H o ur s 

•(-1-64 Disciplinary 

Pr o cedures A Hours 

-t+94 Finge r prin t ing 4 Hours 
( 20 ) Rio t C o ntrol Equipmen t 

aird Forma t ions 3 H ours 
-(-2+-)- Crime 

d iv e s t igati o n B Hours 
C 22 ) Intro duct ion to 

Pr o bati o n Par o le 4 Hours 
(23 ) In t crper sonal 

C o mmuni c atio -n 24 H o urs 

-f2-^r)- irnTrtrt-e Grievanc e 

P r ocedu r es 2 Hours 

■(-Sfr> Tlie Classification 

Pro c ess 4 Hours 

( 20 -)- RcpoT-b Wri t ing 4 Hours 
( 27 ) Raduro 

( 20 ) Cor re ct-ji-ons 

W or ksh o p 4 Hours 

<29 ) Adm in i s t r at i ve Ma tt ers 

rf jt bcrs -1 — W^ Hours 

-(rB^^ Te st ii -rg jnrd 

R eview 1/2 Hours 

(1) The Division of 

2 Hours 



P risons Employee 

(2) Prison Security 
Functions and 
Procedures 



4 Hours 



(3) Contraband and 
Techniques of 
Search 



8 Hours 



( 4 ) In.Tiate 
S upervision 



8 Hours 



( 5 ) Firearms 



24 Hours 



(6) Inmnte Classification 



Process and 
Programs 



4 Hours 



(7) Understanding Inmate 
Behavior 12 Hours 



(8) Prison Emergency 
Operat ions 18 Hours 

(9) Radio Communications, 
Transporting, and 
Restraints 4 Hours 

( 1 ) Basic Life 



Support 



12 Hours 



(11) Prison Health 
Services 



2 Hours 



(12) Report 
W rit ing 



6 Hours 



(13) You and the 
Law 



4 Hours 



(14) Interpersonal 
Communicnt ion 
Skills 



16 Hours 



3 Hours 



(15) Unarmed Self 
Defense 



18 Hours 



NORTH CAROLINA REGISTER 



323 



(15) Role of the Correctional 



(e) The North Carolina 



Witne-ns 



(17) Dir:ciplinarv and Inmate 
Grievance Procedures 4 Hours 

(18) Adninistr a fcive Hatte rs. 
Review and Tcstinc; 10 Hours 



4 Hours Justice Academy is the only 

commission-accredited school 

authorized to conduct this 



Total 



160 Hours 



(c) The 



Officer Training 



asi c Correctional 
Manual" 



as 



published by the Department o f 
Correction is hereby adopted b y 
reference to apply as the basic 

_o_f 
• ic 



curriculum foi- delivery 



correct ional 



officer 



ba 



traini n g courses 



(d) The Office of Staff 
Development and Training of t lie 
North Carolina Department of 
Correction is tlie only 



commiss ion- accredited 



school 



autliorized 



to 



conduct 



this 



course . 



.0210 



R.4DAR INSTRUCTOR 
TR-AINING COURSE 
(d) Each radar instructor 
training course shall include 
but not be limited to tlie 
follovjing topic areas and 
corresponding instructional 
liours and incorporate the 
corresponding minimum trainee 
performance objectives within 
the course curriculum: 

-f-2-> ikriHTtrd-s and Tuclmiques 
o"jF xnctructions • "Hrc 
f undam jnt al z ox effect i\'e 
:1;.S51 uon delivery 

■fc-o includ c-r 
a p pcjii ari ce , 
cj csturei; . pjua e ;. , giran.'. ar , ■ 
pr o nun c i - a t ion . enunt-i a t i o n ■ 
v o ic e ■ cyt? contac t ■ rate , 
use trf materials a n d 
and 



2 H o urs 
(2) _North Carolina 




Administrative 


Code : 


Familiarization vn 


th the 


code as to radar 


training 


courses and certification 


requirements, to 


include 


complet ioii of the forms that 


pertain to speed mor 


suremont 


instrument trainin 


g. 2 



Hours 
(3) Overvievj and Introduction 
to Radar Training. 4 Hours 
■(-6-> fa m ilia r iza tio n o-f ttrc 

N ort h Car o lina 

Admn 1st r it ive Code a^ "bt? 

I' ada r t-rtra-rrirrg cTytrr scs and 

cei I if i -a 1- jron 

r cq i riircinc ii t o . 
(f) The North Carolina 



Justice 


A 


c ado my 


is 


the 


only 


commiss 


ion- 


nccred 


i.ted 




school 


authorized 


to 


cond 


uct 


this 



course . 

.0211 CRIMINAL JUSTICE 
TD/SMI INSTRUCTOR 
TRAINING COURSE 



.0218 RE-CERTIFICATION 
TR.AINING FOR RADAR INSTRUCTORS 
(d) The North Carolina 
Justice Academy is the only 



commission-accredited 



school 



a u thor i zed 



to 



conduct 



this 



course . 



.0219 RE-CERTIFICATION TRAINING 

FOR TD/SNI INSTRUCTORS 
(d) The North Carolina 



Justice Academy is the 


only 


com.mission-accredited 


school 


authorized to conduct 


this 



course . 

.0226 SPECIALIZED INSTRUCTOR 

TRAINING - FIREARMS 
(c) Each applicant for 
specialized firearms instructor 
training shall : 

( 1 ) have completed the 

criminal justice general 
instructor training course; 
and . 
(2) present a v;ritten 

endorsement by a certified 
school director indicating 
the student v.'ill be utilized 
to instruct firearms in 

-Law 



"Basic Recruit Training- 
Enforcement" courses. 

(d) PRESENT (c) BECOMES (d) 

(e) PRESENT (d) BECOMES 

(e) and PRESENT Ce) BECOMES (f) 

sei ' iools , e .rc e p t t he N ort h 
Carolina Jus t ice Acade iiry-r canno t 
trc g i. anted c o urs e accredi t a t i o n 
tT3 deliver this c o u r se un t il 
such t ine a^ "Hre Academy I'las 
deve l opc-d r equisi t e ins t ruc to r 
no t eL oo l ;s and t he co mmission has 
ad op t ed r ules tr^ all o v? delivery 
o-£ th-it? course by 
comm issi o n — acc re dited schools . 

(f) The North Carolina 
Justice Academy is the only 

commission-accredited sch ool 

authorized to conduct this 
course . 



.0227 SPECIALIZED INSTRUCTOR 

TRAINING - DRIVING 
(c) Each applicant for 
specialized driver instructor 
training shall : 

( 1 ) have completed the 

crimi nal justice general 
instructor training course; 
(2) present a written 

endorsement by a certified 
school director indicating 
the student will be utilized 



to 



instruct driving 



"Basic Recruit Training--Law 
Enforcement" courses; 
(5) possess a valid operator 



324 



NORTH CAROLINA REGISTER 



driver's license; and, 
(4) maintain a safe drivin g 



record 


where 


no more 


than 


four 


points 


have 


been 



assigned against the driving 
record within the past three 
years . 
(d) PR E S ENT (c) BEC OM ES (d) 



(e) PRE S ENT (d) BECOMES (e) 
and PRESENT (e) BECOMES (f) 

( f ) Commissio n — jcci edited 
scl ' iools , except -tire N o rth 
Carolina Jus t i c e Academy , cannot 
trt; g-rt m t ad course accreditation 
■to d-e3r iver t+rrs courz^e tnrt-ii 
such t-ime trs "the Academy htrs 
developed requisi t e ins tr uc to r 
no t ebo o ks and t he c ommissio n ir<3rs 
ad o p t ed rul e s try allov> delivery 
trf t+rrs c o urs e by 
i-o mmlssion — accredited scliools ■ 

(f) The North Carolina 
Justice Academy is the only 

commission-accredited school 

authorized to conduct this 
course . 



.0228 BASIC TRAINING: 
WILDLIFE ENFORCEMENT OFFICERS 

(a) The basic training 
course for wildlife enforcement 
officers appointed by the 
Wildlife Resources Commission as 
authorized under General Statute 
113-136 shall consist of a 
minimum of 536 hours of 
instruction designed to provide 
the trainee with the skills and 
knowledge to perform those tasks 
essential to function as a 
wildlife enforcement officer. 

(b) Each basic training 
course for wildlife enforcement 
officers shall include the 
following indentified topical 
areas and minimum instructional 
hours for each area: 

( 1 ) Course 
Orientation 

(2) Constitutional 
Law 

(3) Lavjs of Arrestj 
and Detention 

(4) Mechanics of Arrest, 
Arrest Procedures 8 Hours 

(5) Lav; Enforcement 
Communications and 
Information System 4 Hours 

(6) Elements of Criminal 
Law 24 Hours 

(7) Defensive 

Tactics 32 Hours 

(8) Juvenile Law and 
Procedures 8 Hours 

(9) Emergency Medical 
Services 24 Hours 

(10) Firearms 40 Hours 

(11) Hunter Safety 10 Hours 

(12) Patrol 

Techniques 16 Hours 

(13) Field Notetaking and 
Report Writing 12 Hours 

(14) Crisis 

Management 10 Hours 



2 Hours 

4 Hours 
Search 
16 Hours 



12 Hours 
Field and 

8 Hours 

6 Hours 



2 Hours 
8 Hours 



(15) Criminal 
Investigation 

(16) Interviews ; 
In-Custody 

(17) Controlled 
Substances 

(18) ABC Laws and 
Procedures 4 Hours 

(19) Electrical and Hazardous 
Material Emergencies 6 Hours 

(20) Law Enforcement Drivers 
Training 40 Hours 

(21 ) Preparing for Court and 
Testifying in Court 12 Hours 

(22) Game and Fish 

Laws 36 Hours 

(23) Motorboat 

Laws 12 Hours 

(24) Boating Procedures & 
Small Boat Handling 20 Hours 

(25) Dealing with Problem 
Animal Situations 4 Hours 

(26) Basic Field 
Identification of 

Fishes 6 Hours 

(27) Basic Field 
Identification of Game 
Animals, Game Birds and 
Non-Game Animals 2 Hours 

(28) Indent if icat ion of 
Migratory Waterfowl 2 Hours 

(2.9) Endangered 

Species 
( 30 ) Trapping 

(31) Water Safety and 
Swimming 16 Hours 

(32) Knotsmanship , A 
practical Use of 

Rope 2 Hours 

(33) VJildlife Law Enforcement 
and the Media 8 Hours 

(34) Motorboat Accident 
Investigation 

(35) Civil 
Disorders 

(36) Radiological 
Monitoring 

(37) Covert 
Activities 

(3S) Basic 
Photography 

(39) Motor Vehicle 
Laws 

(40) DWI Enforcement 

(41 ) Physical 
Training 

(c) The "Wildlife Basic 
Training Manual" as published by 
the North Carolina Wildlife 
Resources Commission is hereby 
adopted by reference to apply as 
the basic curriculum for 
delivery of wildlife enforcement 
officer basic training courses. 

(d) The Division of 
Enforcement Training Office of 
the North Carolina Wildlife 
Resources Commission is the only 
commission-accredited school 
authorized to conduct this 
course . 

.0229 CORRECTIONS SPECIALIZED 
INSTRUCTOR TRAINING - FIREARMS 



12 Hours 

12 Hours 

16 Hours 

2 Hours 

8 Hours 

6 Hours 

2 Hours 

60 Hours 



NORTH CAROLINA REGISTER 



325 



(a) The instructor training 
course requirement for 
corrections specialized firearms 
instructor certification shall 
consist of a minimum of 80 hours 
of instruction presented during 
a continous period of not more 
than tv^o weeks or as approved by 
the Standards Division. 

(b) Each corrections 
specialized firearms instructor 
training courr.c shall be 
designed to pro\'ide the trainee 
with the skills and knowledge to 
perform the function of a 
criminal justice firearms 
instructor in the "Basic 
Training--Correct ional Officer" 
course, "Basic Training-- 
Probation/ Parole 

Officer-Surveillance" course , 
"Basic Training-- 

Proba t ion/Parole Intensive 
Officer" course. and advanced 
(in-service) training courses 
for correctional officers, 
extradition officers. PERT 
teams, and intensive supervision 
and surveillance probation and 
parole officers . 

(c) Each corrections 
specialized firearms instructor 
training course shall include as 
a minimum the following 
identified topical areas and 
minimum instructional hours for 
each area: 

( 1 ) Overview 3 Hours 

(2) Legal Considerations 
for Firearms 
Instructors 4 Hours 

(3) Firearms Safety 2 Hours 

(4) Range 

Operations 2 Hours 

(5) Range Medical 
Emergeiicies 2 Hours 

(6) Revolver - Operation. 
Use and Maintenance 12 Hours 

(7) Advanced Revolver 
Training 6 llours 

(8) Revolver Night 

Firing 4 Hours 

(9) Rifle Training 

and Qualification 8 Hours 

(10) Shotgun Training and 
Qualification 5-1/2 Hours 

(11) Maintenance and Repair 
of Rifles & SJiotguns 2 Hours 
Shotguns 2 Hours 

(12) Special Techniques, 
Training Aids and 

Methods 3 Hours 

(13) Chemical 

Weapons 8 Hours 

(14) Situational Use 

of Firearms 10-1/2 Hours 

(15) Day and Night Practical 
Courses of Fire 6 Hours 

(16) Administrative Matters. 
Testing, and 

Evaluation 2 Hours 

(d) The Office of Staff 
Development and Training of the 
North Carolina Department of 



Correction is the only 
commission-accredited school 
autliorized to conduct this 
course . 

.0230 CORRECTIONS 

SPECIALIZED INSTRUCTOR 
TRA. /UNARMED SELF-DEF. 

(a) The insti'uctor 

training course requirement for 
corrections specialized unarmed 
self-defense instructor 

certification shall consist of a 
minimum of 80 hours of 
instruction presented during a 
continuous period of not more 
than t'.;o weeks or as approved by 
the Standards Division. 

(b) Each corrections 
specialized unarmed self-defense 
instructor training course shall 
be designed to provide the 
trainee v;ith the skills and 
knowledge to perform the 
function of a criminal justice 
unarmed self-defense instructor 
in the "Basic Training-- 
Corrcctional Officer" course, 
"Basic Training-- 
Probat ion/Parole Officer- 
Surveillance" course, "Basic 
Training-- Probation/Parole 
Intensive Officer" course. and 
advanced (in-service) training 
courses for correctional 
officers, extradition officers, 
PERT teams, intensive 
supervision and surveillance 
probation/parole officers, and 
all Division of Youth Services 
unarmed self-defense courses. 

(c) Each corrections 
specialized unarmed 
self-defense instructor 
training course shall include 
as a minimum the following 
identified topical areas and 
minimum instructional hours for 
each area: 

(1) Introduction to Unarmed 
Self-Defense 2 Hours 

(2) Basic Exercises, 
Techniques and 

Methods 12 Hours 

(3) Basic Come-Alongs and 
Control Techniques 14 Hours 

(4) Restraint 
Application 10 Hours 

(5) Instructional Methods/ 
Techniques 30 Hours 

( 6 ) Program 

Evaluation 12 Hours 

(d) The Office of Staff 
Development and Training of the 
North Carolina Department of 
Correction is tlie only 
commission-accredited school 
authorized to conduct this 
course . 



.0231 BASIC TRAINING- 
-PROBATION/PAROLE 
INTENSIVE OFFICER 



326 



NORTH CAROLINA REGISTER 



In Addition to the 
requirements for Basic Training 
for Probation/Parole Officers 
and Intake Officers contained in 
Rule .0208 of this Section, 
every Probation/Parole Intensive 
Officer shall complete a 
supplemental training course 
contained in Rule .0223 of this 
section, and the 168-hour 
Probation/Parole advanced 
counseling training program. 

.0232 SPECIALIZED INSTRUCTOR 

TRAINING - DEFENSIVE 

TACTICS 

(a) The instructor training 
course required for specialized 
defensive tactics instructor 
certification shall consist of a 
minimum of 40 hours of 
instruction presented during a 
continuous period of not more 
than one VJeek. 

(b) Each specialized 
defensive tactics instructor 
training course shall be 
designed to provide the trainee 
with the skills and knowledge to 
perform the function of a 
criminal justice defensive 
tactics instructor in a "Basic 
Recruit Training--Law 
Enforcement" course. 

(c) Each applicant for 
specialized defensive tactics 
instructor training shall: 

( 1 ) have completed the 

criminal justice general 
instructor training course; 

(2) present a letter from 

a licensed physician stating 
the applicant's physical 
fitness to participate in 
the course; and. 

(3) present a written 
endorsement by a certified 
school director indicating 
the student will be utilized 
to instruct defensive 
tactics in "Basic Recruit 
Training — Law Enforcement" 
courses . 

(d) Each specialized 
defensive tactics instructor 
training course shall include as 
a minimum the following 
identified topic areas and 
minimum instructional hours for 
each area: 

( 1 ) Orientation 

/Pretest 4 Hours 

(2) Civil Liability 4 Hours 

(3) Response to 

Injury 4 Hours 

(4) Safety Rules 2 Hours 

(5) Lesson Plan Review 
(BLET) 2 Hours 

(6) Defensive Tactics 
Instructional 

Methods 24 Hours 

(e) The "Specialized 
Defensive Tactics Instructor 
Training Manual" as published by 



the North Carolina Justice 

Academy is hereby adopted by 

reference to apply as the basic 

curriculum for delivery of 

specialized defensive tactics 

instructor training courses. 

Copies of this publication may 

be inspected at tlic agency: 

Criminal Justice 

Standards Divicion 

N. C. Dcparti.ient of Justice 

1 W. Morgan Street 

Court of Appeals Building 

P.O. Drawer 149 

Raleigh, N.C. 27602 

(f) The North Carolina 

Justice Academy is the only 

commission-accredited school 

authorized to conduct this 

course . 

SECTION .0300 - MINIMUM 

STANDARDS FOR CRIMINAL 
JUSTICE INSTRUCTORS 

.0304 SPECIFIC 

INSTRUCTOR CERTIFICATION 

(a) The Commission may 
issue a Specific Instructor 
Certification to an applicant 
who has developed specific 
motor-skills and abilities by 
virtue of special training and 
demonstrated experience in one 
or more of the following topical 
areas : 

(1) Defensive Tactics 

(2) Emergency Medical 
Services 

(3) Firearms 

(4) Law Enforcement 
Driving Training 

(5) Physical Activities 
( 6 )__ Firearms (DOC) 



(7) 


V.ns 


rmed 


Self- 


De 


fens 


e (DOC/DYS) 


(8) 


Med 


ical 


Emercicncies 


(DYS) 







(b) To qualify for Specific 
Instructor Certification, with 
the exception of the Emergency 
tiedical Services topical area as 
outlined in Rule .0304(c) and 
( d ) of this Section, an 
applicant, as a minimum, must 
meet the following requirements: 

( o ) trc abl c iro uocu]nen"t 
i:ucccj;sf ul comple t ion of. 
<rM- a c o mmisi;ic i n — rec o gnized 
specific ins tr uc t or 
training coursu o-f at- 
1-ctrst ont; rrcc k or* longer; 
artd 
-HH- t+re purllin j ii l 

f amil iar izci -brroTt course; 
and 
(4) RENUMBER PRESENT (4) 
TO (3) 

(c) To qualify for Specific 
Instructor Certification in the 
Emergency Medical Services 
topical area, an applicant is 
not required to meet the 



NORTH CAROLINA REGISTER 



327 



standards for issuance of 
General Instructor 

Certification, but as a minimum, 
must qualify through oiie of the 
following two options: 
( 1 ) hold current CPR 

instructor certification 
through either the American 
Rod Cross or tl\e American 
Heart Association; and 

(2) hold current basic 
Emergency Medical Technician 
certification; and 

(3) have successfully 
completed the Department of 
Transportation's 40 hour EMT 
Instructor Course or 
equivalent within the last 
three years or hold a 
current North Carolina 
teaching certificate; or 

(4) hold General Instructor 
Certification. eitlier 
probatioiiary status or full 
general instructor status, 
as specified in Rule .0503 
of this Section; and 

(5) hold current CPR 
instructor certification 
through cither the American 
Red Cross or the American 
Heart Association: and 

(6) hold current 

basic EMT certification. 
(d) To qualify for Specific 
Instructor Cert.i f ication in the 



Youth 



C o rrect ional 



Medical 



Emcracncio? 



top i c al area , 



an 



applicant is not required to 
meet the standards for issuance 



of 



General 



Instructor 



Certification, but as a minimum- 
must qualify in the follov;inq 



(1 ) have successfully 

completed a 

commission-accredited basic 
instructor training course 
or an equivalent, instructor 

training course as 

determined by the commission 
vjithin the twenty-four __month 



period 



preceding 



(2 



application; and 

) hold current instructoi 



certification in CPR 



i.nd 



First Aid by fulfillment of 



the 



A^T'or ican 



Red 



Cros 



Instructor requirements . 

.0305 TERMS AND 

CONDITION'S OF SPECIFIC 
INSTRUCTOR CERTIFICATION 
(b) The probationary 
instructor vjill bo eligible for 
full specific instructor status 
at the end of the probationary 
period if the instructor, 
through application, submits to 
the commission: 

(2) a favorable written 

evaluation by a commission 
or staff member, based on an 
on-site classroom evaluation 



of the probationary 
instructor in a 
commission -accredited 
course. Such evaluation 
will be certified on a 
commission- approved 
Instructor Evaluation Form 
completed for each of the 
topics where the 
probationary instructor 
taught a minimum of four 
hours and for vjhich Specific 
Instructor Certification was 
granted; or 
(3) in the case of the 

Department of Correction's 



Specialized 



Firearms 



Instructors and Specialized 



Unarmed 



Self-Defense 



Instructors , 



favorable 



written evaluation 



_biL. 



commission or staff member, 
or a staff member of the 
Office of Staff Development 



and 



Training 



of 



the 



Department 



Correction, 



based 



on-site 



classroom evaluation of tlie 
probationarv instructor in a 
commission-accredited course 
or a commission-approved DOC 



in-service 



firearms 



or 



unarmed self-defense course. 



Such 



e valuation wi 1 1 



be 



cert if icd 



commission- approved 
Instructor Evaluation Form 
completed for each of the 
topics v?here the 



probationarv 



instructor 



taught 



minimum 



of four 



hours and for v;hich Specific 
Instructor Certification was 
granted; or 
(4) in the case of the 

Division of Youth Services' 



Special ized 



Unarmed 



Self-Defense Instructors and 
Youth Correctional Medical 
Emergencies Instructors, a 
favorable vjritten evaluat ion 



bY. 



commission or staff 



mem.ber . 



Staff 



Development Specialist of 



the 



Division 



of 



Youth 



Services , 



based 



on 



an 



on-site classroom evaluation 



of 



the 



instructor 



probationarv 



commission -accredited 
course . 



Such evaluation 



will 



be 



certified 



commission-approved 
Instructor Evaluation Form 
completed for the topic 



vjhere 



the 



probat ionarv 



instructor taught a minimum 
of four hours and for which 



Specif ic 



Instructor 



Certification v;as granted. 
(c) The term of 
certification as a full specific 
instructor is two years from the 
date the commission issues the 



328 



NORTH CAROLINA REGISTER 



certification. The 

certification may subsequently 
be rencvjed by the commission for 
two year periods. The 
application for renewal shall 
contain, in addition to the 
requirements listed in Rule 
.0304 of this Section, 
documentary evidence that the 
applicant has remained active in 
the instructional process during 
the previous tv;o-year period. 
Such documentary evidence shall 
include, at a minimum, the 
following : 

(3) a favorable evaluation 

by a commission or staff 
member, based on an on-site 
classroom evaluation of a 
presentation by the 
instructor in a 
commission-accredited 
training course, during the 
two-year period of Specific 
Instructor Certification. 
In addition, instructors 
evaluated by a commission or 
staff member must also teach 
at leat four hours in each 
of the topics for which 
Specific Instructor 

Certification was granted; 
or 

(4) in the case of 
the Department of 



Correction ' s 



Special ized 



Firearms 



Instructors 



and 



Specialized 



Unarmed 



Self-Defense Instructors, a 
favorable evaluat i on by a 
commission or staff member, 
or a staff member of tlie 
Office of Staff Development 



and 



Training 



of 



the 



Department of Correction, 



based 



on 



an 



on-site 



classroom evaluation of the 



instructor 



m 



commission-accredited 
trainincT course or 



commission- approved 



DOC 



in-serv] ce 



firearms 



unarmed self-defense course. 
The instructor must have 
taught a minimum of four 
hours in each of the topics 
for vjhich full Specific 
Instructor Certification was 
granted for the two-year 



of the 



inr;tructor 



commission-accredited 
training course. 



The 



instructor must have taught 
a minimum of four hours in 
t he topic for vrhich full 



S pecific 



Instructor 



Certification v/as granted 
for the two-year period. 

SECTION .0400 - MINIMUM 
STANDARDS FOR 
COMPLETION OF TRAINING 

.0403 EVALUATION 

FOR TRAINING WAIVER 
(a) The division staff 
shall evaluate each law 
enforcement officer's training 
and experience to determine if 
equivalent training has been 
satisfactorily completed as 
specified in Rule .0402(a). 
Applicants for certification 
with prior law enforcement 
experience shall have been 
employed in a full-time, sworn 
law enforcement position in 
order to be considered for 
training evaluation under this 
Rule. Applicants for 

certification with a combination 
of full-time and part-time 
experience shall be evaluated on 
the basis of the full-time 
experience only. The following 
criteria shall be used by 
division staff in evaluating a 
law enforcement officer's 
training and e.xperience to 
determine eligibility for a 
waiver of training requirements: 
(19) Wildlife enforcement 

officers vjho separate from 
employment with the Wildlife 
Enforcement Division and 



transfer to 



another 



law 



enforcement agencv in 



E\7orn capacity shall 



be 



subject to evaluation of 



their prior training 



and 



e.xperience on an individual 



basis , 



The division staff 



shall determine the amount 



of 



training required of 



period, or 
(5) in the case of 



the 



Division 



Services ' 



Unarmed 



Instructors 



Correctional 



Emergencies Instructors. a 
favorable written evaluation 



these applicants. 

.0404 TRAINEE ATTENDANCE 
(i) A trainee, enrolled 
i n a presentation of the 
".Sp ecialized Instructor Training 
Firearms" course under Rule 
.0 226 of this Subchapter, the 
Self-Defense "Specialized Instructor Training 
Driving" courr^o under Rule 
.0227 of this Subchapter, or the 
"Specialized Instructor Training 

course 



of 



Youth 



Specia l ized 



^md 



Youth 



Medical 



Defensive 



Tactics' 



by 



commission or staff 



under 



Rule 



.0232 



member. 



of 



this 



or 



Development Specialist of 



the 



Division 



of 



Services, 



based 



on-site classroom evaluation 



Staff Subchapter, shall not be absent 
f rom c ] ass attendance for more 
Youth than 1 percent of the total 
an scheduled delivery period in 



order to receive 



successful 



NORTH CAROLINA REGISTER 



329 



course completion. Appropriate 
m ake-up work must be conpleted 
during th e current course 



presentation 



for 



all 



absonteeisn . 

(j) A trainee, enrolled 
in a presen tati on of the "Radar 
In st ructo r Tra ining C ourse" 



plan and final SO-minute 

presentation; and, 

(3 ) achieve a score of 75 

percent correct answers on the 
commisson-a dm in i stored 

comprehensive written 

e xamination . 
(b) 



under 



Rule 



.0210 



of 



this 



fail 



Sl\ould a trainee 
to meet the 



minimum 



Su bcliapter ■ 



the 



criteria 



the final lesson 



"Time-Distance .Speed Measurement plan or tlio final 80-minute 
Instrument Inst r uctor Training presentation. he/she shall be 
Course" under Rule .0211 of this authorized one opportunity to 



Subchaptr-r, sliall not be absen t 
from class attendance for more 



correct 



oitlior 



of 



these 



deficiencies. Such makeup work 



tlian 10 percent of the total must be completed during the 

scheduled delivery period in original two-week course and 

order to receive successful prior to the trainee being 

course completion. Appropriate administered the comprehensive 

make-up v;or]c rnii^jt be complotod written examination, 

during the current course 



presentation 



for 



all 



absenteeism . 

.0410 CRIMINAL JUSTICE 

INSTRUCTOR TPJ^INING COURSE 
( a ) To acquire successful 
completion of the "Criminal 
Justice Instructor Training 
Course" the trainee shall: 

( 1 ) satisf crcb o r ily c o mpl et e 
g ill trf triTC r e q uired 
cou r 5ev;oi 4rT s p ecifically 
includin c ; e acl i trf t+rc 
t rain e e pi -e s tnit a t ious wi-Hi 
vide o t aping , playback, and 
critique trf atr least on e erf 
his/her pr e s enta t ions . Airt 
t rainee pr c s en t a t ion s mrsrt 
hav e rrerb -the c ri t eria arrd 
condi t i o ns a-s specified -i-n 
t+rc Orientation — L e ss o n 
Plan Prcpara t i o n -irt t-lre 
"Basi c irrst ruc to r Trainin g 
Manual -^ trs publish e d by t^re 
N o rth Car o lina Justice 
Academy . 
(1) satisfactorily complete 
all required coursework, 
specifically including each 
of the trainee presentations 
with video taping, playback. 
and critique as specified in 
the "Basic Instructor 



Training 



Manual" 



as 



published 



by 



the 



North 



Carolina Justice Academy. 
All trainee presentation s 
must have met the criteria 
and conditions specified in 
the course orientation of 



the 



"Basic 



Instructor 



Training Manual;" 
( 2 ) aclTieve ti score ox ctr 

l e as t -7-5 on the final 
00 minu t e p resenta t i o n arrd a 
sc o re o-f crt leas t t^ ort tire 
wr it ten examxi'iat ion . 
(2) attain the minimum 



score 


on each per 


f ormance 


area a 


s specified 


in 


tlio 


course 


abstract 


of 


the 


"Basic 


Instructor 


Manual" 


for the 


final written le 


sson 



.0413 COMPREHENSIVE 

WRITTEN EXAM -- 
INSTRUCTOR TRAINING 

(a) At the conclusion 

of a school's offering of the 
"Criminal Justice Instructor 
Training Course" in its 
entirety, an authorized 
representative of the commission 
shall administer a comprehensive 
written examination to each 
trainee V'jho has satisfactorily 
completed all of the required 
course work. A trainee cannot 
be administered the 
comprehensive vjritten 

examination until such time as 
all of the pertinent course work 
is completed. 

(b) The examination shall 

be an objective test consisting 
of multiple-choice, true-false, 
or similar questions covering 
the topic areas contained in the 
accredited course curriculum. 

(c) The commission's 
representative shall submit to 
the school director within five 
days of the administration of 
the examination a report of the 
results of tlie test for each 
trainee examined. 

(d) A trainee shall 
successfully complete the 
comprehensive written 
e.xaminatio: if he/slie achieves a 
minimum of 75 percent correct 
answers . 

(e) A trainee who has 

fully participated in a 
scheduled delivery of an 
accredited training course and 
has demonstrated satisfactory 
competence in each performance 
area of the course curriculum, 
who has scored at least 65 
percent but has failed to 
achieve the minimum passing 
score of 75 percent on the 
commission's comprehensive 
written examination, may request 
the Director of the Standards 



330 



NORTH CAROLINA REGISTER 



Division to authorize a 
re-examination of the trainee. 

(1) The trainee's request 
for re-examination shall be 
made in writing on the 
commission's form and shall 
bo received by the Standards 
Division within 30 days of 
the examination. 

(2) The trainee's request 
for re-examination shall 
include the favorable 
recommendation of the school 
director who administered 
the course. 

(3) A trainee shall have, 
within 90 days of the 
original examination, only 
one opportunity for 
re-examination and shall 
satisfactorily complete the 
subsequent examination in 
its entirety. 

(4) The trainee will be 
assigned in writing by the 
Standards Division staff a 
place, time, and date for 
re-e,xaminat ion . 

(5) Should the trainee on 
re-examination not achieve 
the prescribed minimum score 
on the examination, the 
trainee may not be given 
successful course completion 
and shall enroll and 
successfully complete a 
subsequent offering of the 
instructor course in its 
entirety before further 
examination may be 
permitted . 

.0414 COMPREHENSIVE 

WRITTEN EXAM-SPECIALIZED 
INSTRUCTOR TRAINING 

(a) At the conclusion 

of a school's offering of the 
"Specialized Instructor Training 
Firearms" course, tlie 
"Specialized Instructor Training 
Driving" course, and the 
"Specialized Instructor Training 
- Defensive Tactics" course in 
its entirety, and authorized 
representative of the commission 
shall administer a comprehensive 
written examination to each 
trainee who has satisfactorily 
completed all of the required 
course work. A trainee cannot 
be administered the 
comprehensive written 

examination untill such time as 
all of the pertinent course work 
is completed. 

(b) The e.xamination 

shall be an objective test 
consisting of multiple-choice, 
true-false, or similar questions 
covering the topic areas 
contained in the accredited 
course curriculum. 

(c) The commission's 



representative shall submit to 
the school director within five 
days of the administration of 
the examination a report of tlie 
results of the test for each 
trainee examined. 

(d) A trainee shall 
successfully complete the 
comprehensive written 

e.xamination if he/she achieves a 
minimum of 75 percent correct 
answers . 

(c) A trainee who has 
fully participated in a 
scheduled delivery of an 
accredited training course and 
has demonstrated satisfactory 
competence in each performance 
area of the course curriculum 
but has failed to achieve the 
minimum score of 75 percent on 
the commission's comprehensive 
written examination may request 
the Director of the Standards 
Division to authorize a 
re-e,xamination of the trainee. 

(1) The trainee's request 
for re-examination shall be 
made in writing on the 
commission's form and shall 
bo received by the Standards 
Division within 30 days of 
the examination. 

(2) Tlie trainee's request 
for re-e.xaminat ion shall 
include the favorable 
recommendation of the school 
director who administered 
the course. 

(3) A trainee shall have, 
within 90 days of the 
original examination, only 
one opportunity for 
re-examination and shall 
satisfactorily complete the 
subsequent examination in 
its entirety. 

(4) The trainee v;ill be 
assigned in writing by the 
Standards Division Staff a 
place, time, and date for 
re-e,xaminat ion . 

(5) Should tlie trainee 

on re-examination not 
achieve the prescribed 
minimum score on the 
examination, the trainee may 
not be given successful 
course completion and shall 
enroll and successfully 
complete a subsequent 
offering of the specialized 
instructor course in its 
entirety before further 
e.xamination may be 
permitted . 

.0415 SATISFACTION OF 

OF MINIMUM TRAINING- 
SPECIALIZED INSTRUCTOR 
(a) To aquire successful 
completion of the "Specialized 
Instructor Training - Firearms" 
course, the "Specialized 



NORTH CAROLINA REGISTER 



331 



Instructor Training - Driving" 
course, and tiae "Specialized 
Instructor Training Defensive 
Tactics" course, the trainee 
shall : 

(1) satisfactorily complete 
all required coursework as 
specified in the course 
abstract of the "Specialized 
Firearms Instructor Training 
Manual," the "Specialized 
Driver Instructor Training 
Manual," and the 
"Specialized Defensive 
Tactics Instructor Training 
Manual" as publislied by the 
North Carolina Justice 
Academy; 

(2) demonstrate proficiency 
in all required motor-skill 
and performance subjects as 
specified in eacli 
specialized instructor 
training manual; and 

(3) acliievo a score of 

75 percent correct answers 
on a comprehensive written 
examination . 
(b) Should a trainee fail to 
meet the minimum criteria on a 
motor-skill or performance area, 
he/she shall be autliorized one 
opportunity for a re-test at the 
discretion of the school 
director. Such re-test must be 
completed during the original 
course and prior to the trainee 
being administered the 
comprehensive written 

examination. Failure to meet 
the required criteria on a 
re-test requires enrollment in a 
subsequent course. 

.0416 SATISFACTION OF 
MINIMUM TRAINING- 
RADAR/TDS INSTRUCTOR 

(a) To acquire successful 
completion of the "Radar 
Instructor Training Course," the 
"Time-Distance Speed Measurement 
Instrument Instructor Training 
Course," the "Re-Certification 
Training for Radar Instructors" 
course and the "Re-Certification 
Training for Time-Distance Speed 
Measurement Instrument 
Instructors" course, the trainee 
shall : 

(1) satisfactorily complete 
all required coursework as 
specified in Rule .0210, 
.0211, .0213. and .0219 of 
this Subchapter for the 
specific course in 
attendance; and 

(2) achieve and score of 

75 percent correct answers 
on a commission-administered 
comprehensive vjritten 
examinat ion . 

(b) If the trainee passes 

the written examination but 
fails to meet the minimum 



criteria on an area of 
motor-skills testing, he/she 
shall be authorized one 
opportunity for a re-test. Such 
re-test must be at the 
recommendation of the school 
director and a request must be 
made to the Standards Division 
v;ithin 30 days of the original 
testing. Re-examination must be 
completed vjithin 90 days of the 
original testing. Failure on 
the re-test requires enrollment 
in a subsequent course . 

(c) If the trainee passes the 
motor-skills testing but fails 
to score tlie required 75 percent 
correct answers on the written 
comprehensive examination, 
he/she shall be authorized one 
opportunity for a re-test . Such 
re-test must be at the 
recommendation of the school 
director and a request must be 
made to the Standards Division 
within 30 days of the original 
testing. Re-e.xamination must be 
completed within 90 days of the 
original testing. Failure on 
the re-test requires enrollment 
in a subsequent course. 

SUBCHAPTER 9C - ADMINISTRATION 
OF CRIMINAL JUSTICE EDUCATION 
AND TRAINING STANDARDS 

SECTION .0400 - ACCREDITATION 
OF CRIMINAL JUSTICE 
SCHOOLS AND TRAINING COURSES 

.0404 PILOT COURSE 

PRESENTATION/PARTICIPATION 

(a) Consistent with the 
curriculum development policy of 
the commission, the Education 
and Training Committee shall 
recommend to the commission the 
delivery system and the 
developer of course curricula. 
Designation of the developer of 
course curricula by the 
commission shall be deemed as 
approval of the developer to 
conduct pilot courses. 

(b) Individuals who 
successfully complete a pilot 
course offering shall not be 
required by other rules of this 
Chapter to complete additional 
training for that specific 
certification program. Such 
pilot training courses shall be 
recognized for purposes of 
certification or 
rccertificat ion . 

Notice is hereby given in 
accordance with G.S. 150B-12 
that +'he North Carolina 
Sheriffs' Education and Training 
Standards Commission intends to 
adopt and amend regulations 
cited as 12 NCAC 10 .0802, 
.0803, .0804, .0805, .0806, 



332 



NORTH CAROLINA REGISTER 



.0807, .0901, .0902, .0903, 
.1101, .1102, .1103. The 
purpose of the proposed 
regulations is to: (1) adopt or 
amend course delivery and 
reporting standards for the 
basic Jailer Certification 
Course; (2) to adopt procedures 
for accrediting agencies to 
deliver the basic Jailor 
Certification Course; (3) to 
adopt standards for instructors 
in the basic Jailer 
Certification Course; (4) to 
amend and adopt procedures for 
applying for Jailer Instructor 
Certification; (5) adopt 
procedures for certification of 
school directors for the Jailer 
Certification Course and terms 
and conditions of certification. 

The proposed effective date of 
this action is December 1, 1986. 



Statutory Authority: 
17E-4; 17E-7. 



G.S, 



The public hearing will be 
conducted at 9:00 a.m. on 
November 14, 1985 at North 
Raleigh Hilton, 3415 Old Wake 
Forest Road, Raleigh, North 
Carolina . 

Comment Procedures: Any person 
interested in these rules may 
present oral or vjritten comments 
relevant to the proposed action 
at the Public Rule Making 
Hearing. VJritten statements not 
presented at the hearing should 
be directed to the undersigned. 
The proposed rules are available 
for public inspection and copies 
may be obtained at the following 
address: Sheriffs' Standards 
Division, North Carolina 
Department of Justice, 1 West 
Morgan Street, Room 30, Court of 
Appeals Building. Post Office 
Drawer 629, Raleigh, North 
Carolina 27602. 

CHAPTER 10 - N.C. SHERIFF'S 
EDUCATION AND 
TRAINING STANDARDS COMMISSION. 

SECTION .0800 - MINIMUM 

STANDARDS FOR JUSTICE 

OFFICER SCHOOLS AND 

TRAINING PROGR^i.MS OR 

COURSES OF INSTRUCTION 

.0802 ADMINISTRATION OF 
JUSTICE OFFICER SCHOOLS 

The rules covering the 
administration of Criminal 
Justice Schools and training 
programs or courses of 
instruction, codified as Title 
12, Subchapter 9B , Section .0200 
of the North Carolii^a 
Administrative Code, effective 



Janua 
adopt 
Cr imi 
Train 
are h 
to ap 
Carol 
Train 
c .x c e p 



ry 1, 1981, and previously 
ed by the North Carolina 
nal Justice Education and 
ing Standards Commission 
ercby adopted by reference 
ply to actions of the North 
ina Sheriffs' Education and 
ing Commission with the 
t ion 



of 



the 



Jailer 



Cert if icat ion Course. 

.0803 ADMINISTRATION OF 
JAILER CERTIFICATION COURSE 

(a) The executive officer 

or officers of the institution 
or agency sponsoring a Jailer 
Certification Course shall have 
primary responsibility for 
implementation of these rules 
and standards and for 
administration of the school. 
The executive officer or 
officers of the institution or 
agency shall secure school 
accreditation pursuant to 12 
NCAC 9C .0401 of the Criminal 
Justice Training and Standards 
Commission prior to offering any 
Jailer Certification Course. 

(b) The executive officers 
shall designate a compensated 
staff member vjho is certified by 
the North Carolina Criminal 
Justice Education and Training 
Standards Commission pursuant to 
12 NCAC 9B .0500 who may apply 
to be the school director. The 
school director shall have 
administrative responsibility 
for planning, scheduling, 
presenting, coordinating, 
reporting, and generally 
managing each sponsored 
accredited criminal justice 
training course. 

(c) The e.xecutive officers 

of the institution or agency 
sponsoring the Jailer 
Certification Course shall: 

( 1 ) acquire and and allocate 
sufficient financial 
resources to provide 
commissi on -cert ified 
instructors and to meet 
otiier necessary program 
expenses ; 

(2) provide adequate 
secretarial, clerical, and 
other supportive staff 
assistance as required by 
the school director; 

(3) provide or make available 
suitable facilities, 
equipment, materials, and 
supplies for comprehensive 
and qualitative course 
delivery, specifically 
including the following: 

(A) a comfortable, 

well-lighted and 

ventilated classroom with 
a seating capacity 
sufficient to accommodate 
all attending trainees; 



NORTH CAROLINA REGISTER 



333 



(B) audio-visual equipmo 
and other instructio 
devices and aids nccess 
and beneficial to 
delivery of effect 
training ; 

(C) a library for trainc 
use covering the subj 
matter areas relevant 
the training cour 
maintained in curr 
status and hav 
sufficient copies 
convenient trainee acce 

CD) Where required by 
courr.c content, provide 
make available faciliti 
equipment, and supplies 
provide training 
physical and motor-sk 
exercises sucli as hand! 
disruptive people, C 
handling fire emergenc 
and coll searches. 



nt 
nal 
ary 
the 



es ' 

ect 

to 

se , 
ent 
ing 
for 



or 
es , 
to 
in 
ill 
ing 
PR, 
ies 



.0804 RESPONSIBILITIES OF THE 
SCHOOL DIRECTOR FOR 
JAILER CERTIFICATION COURSE 
(a) In planning, developing, 
coordinating, and delivering 
each commission-accredited 
Jailer Certification Training 
Course, the school director 
shall: 

(1) Formalize and schedule 
the course curriculum in 



vjith the 

standards 

by tlie 



accordance 
curriculum 
established 
commission . 

(A) The Jailer 
Certification Course shall 
be presented with a 
minimum of AO hours of 
instruction each week 
during consecutive 
calendai- weeks until 
course requirements are 
completed . 

(B) In the event of 
exceptional or emergency 
circumstances, the 
Director of the Standards 
Division may, upon written 
finding of justification, 
grant a v;aiver of the 
minimum hours requirement . 

(2) Select and schedule 

qualified instructors who 
are properly certified by 
the North Carolina Criminal 
Justice Education and 
Training Standards 

Commission. The selecting 
and scheduling of 
instructors is subject to 
special requirements as 
follows : 

(A) No single individual 
may be scheduled to 
instruct more than 35 
percent of the total hours 
of the curriculum during 
any one delivery; 



(B) Where the school 

director shows exceptional 
or emergency circumstances 
and the school director 
documents that an 
instructor is qualified to 
instruct more than 35 
percent of the total hours 
of the curriculum, the 
director of the Sheriffs' 
Standards Division may 
grant written approval for 
the expansion of the 
individual instructional 
limitation . 

(3) Provide each instructor 
with a commission-approved 
course outline and all 
necessary additional 
information concerning the 
instructor's duties and 
responsibil it ies . 

(4) Revievj each instructor's 
lesson plans and other 
instructional materials for 
conformance to established 
commission standards and to 
minimize repetition and 
duplication of subject 
matter . 

(5) Shall permanetly 
maintain records of all 
Jailer Certification 
Training Courses sponsored 
or delivered by the school, 
reflecting : 

(A) Course title; 

(B) Delivery hours of 
course ; 

(C) Course delivery dates; 

(D) Names and addresses 

of instructors utilized 
within designated 

subject-matter areas; 

(E) A roster of enrolled 
trainees, showing class 
attendance and designating 
vjhether each trainee's 
course participation was 
successful or 
unsuccessful ; 

(F) Copies of all rules, 
regulations and guidelines 
developed by the school 
director ; 

(G) Documentation of any 
changes in the initial 
course outline, including 
substitution of 
instructors; and 

(H) Documentation of 

make-up vjork achieved by 
each individual trainee, 
including test scores and 
methods . 

(6) Arrange for the timely 
availability of appropriate 
audiovisual aids and 
materials, publications, 
facilities and equipment for 
training in all topic areas . 

(7) Develop, adopt, 
reproduce. and distribute 
any supplemental rules. 



334 



NORTH CAROLINA REGISTER 



regulations, and 

requirements determined by 
the school to be necessary 
or appropriate for: 

(A) Effective course 
delivery; 

(B) Establishing 
responsibilities and 
obligations of agencies or 
departments employing 
course trainees; and 

(C) Regulating trainee 
participation and demeanor 
and ensuring trainee 
attendance and maintaining 
performance records . 

A copy of such rules, 
regulations and requirements 
shall be submitted to the 
Director of the Sheriffs' 
Standards Division as an 
attachment to the 
Pre-Delivery Report of 
Training Course 

Presentation. A copy of 
such rules shall also be 
given to each trainee and to 
the executive officer of 
each trainee's employing 
agency or department at the 
time the trainee enrolls in 
the course. 

(8) If appropriate, recommend 
housing and dining 
facilities for trainees. 

(9) Not less than 30 days 
before commencing delivery 
of the course, submit to the 
commission a Pre-Delivery 
Report of Training Course 
Presentation (Form F-7A) 
along with the following 
attachments : 

(A) A comprehensive course 
schedule shov.'ing 
arrangement of topical 
presentations and proposed 
instructional assignments. 

(B) A copy of any rules, 
regulations, and 
requirements for the 
school and, when 
appropriate, completed 
applications for 
Professional Lecturer 
Certification. 

(C) The Director of the 
Sheriffs' Standards 
Division shall review the 
submitted Pro-Delivery 
Report together with all 
attachments and notify the 
school director of any 
apparent deficiency. 

(10) Administer the course 
delivery in accordance with 
commission approved 
procedures, guidelines, and 
standards and ensure that 
the training offered is as 
effective as possible. 

(11) Monitor the 
presentations of all 
probationary instructors 



during course delivery and 
prepare formal written 
evaluations on their 
performance and suitability 
for subsequent instructional 
assignments. These 

evaluations shall be 
prepared on 

commission-approved forms 
and forwarded to the 
commission. Based on this 
evaluation the school 
director sliall have the 
added responsibility for 
recommending approval or 
denial of requests for 
General Instructor 

Certification . 
NOTE: All instructors must 
meet minimum teaching hour 
requirements pursuant to 12 NCAC 
9B .0303(d). 

(12) Monitor the 
presentations of all other 
instructors during course 
delivery and prepare formal 
v;ritten evalualtions on 
tlieir performance and 
suitability for subsequent 
instructional assignments. 
Instructor evaluations shall 
be prepared on 
commission-approved forms in 
accordance with commission 
standards . These 
evaluations shall be kept on 
file by the school for a 
period of three years and 
shall be made available for 
inspection by a 
representative of the 
commission upon request . 

(13) Administer or designate 
a qualified person to 
administer appropriate tests 
as determined necessary at 
various intervals during 
course delivery. 

(14) Maintain direct 
supervision, direction, and 
control over the performance 
of all persons to whom any 
portion of the planning, 
development, presentation, 
or administration of a 
course has been delegated. 

(15) During a delivery of the 
Jailer Certification Course, 
make available to authorized 
representatives of the 
commission four hours of 
sclieduled class time and 
classroom facilities for the 
administration of a written 
examination to those 
trainees who have 
satisfactorily completed all 
course v;ork. 

(16) Not more than 10 days 
after receiving from the 
commission's representative 
the Report of E.xaminiat ion 
Scores, tlie school director 
shall submit to the 



NORTH CAROLINA REGISTER 



335 



rommission a Post-Delivery 
Report of Training Course 
Presentation CForm7-B). 

.0805 CERTIFICATION OF 

SCHOOL DIRECTORS FOR THE 
JAILER CERTIFICATION COURSE 

(a) Any person designated 

to act as, or v^ho performs the 
duties ofr a school director in 
the delivery or presentation of 
a commission-accredited criminal 
justice training course sliall be 
and continuously remain 
certified by the commission as a 
school director. 

(b) To qualify for 
certification as scliool director 
of the Jailer Certification 
Course : 

( 1 ) Present documentary 

evidence shov/ing that the 
applicant : 

(A) is a high school 
graduate or has passed the 
General Education 
Development Test (GED) 
indicating high school 
equivalency and lias 
acquired five years of 
practical experience as a 
criminal justice officer 
or as an administrator or 
specialist in a field 
directly related to the 
criminal justice system. 
At least one year of the 
required five years 
experience must have been 
while actively 
participating in criminal 
justice training as a 
North Carolina Criminal 
Justice Education and 
Training Standards 
Commission-Certified 
instructor; or 

(B) has been avjarded an 
associate degree and has 
acquired four years of 
practical experience as a 
criminal justice officer 
or as an administrator or 
specialist in a field 
directly related to the 
criminal justice system. 
At least one year of tlie 
required four years 
experience must have been 
while directly 
participating in criminal 
justice training at a 
North Carolina Criminal 
Justice Education and 
Training Standards 
Commission-Certified 
Instructor; or 

(C) has been avjarded a 
Baccalaureate Degree 
acceptable to any 
commission-accredited 
school in its criminal 
justice program. In 
addition, it is 



recommended that the 
applicant have some 
experience as a criminal 
justice officer or some 
experience in criminal 
justice training. 

(2) Present evidence showing 
successful completion of a 
North Carolina Criminal 
Justice Education and 
Training Standards 
Commission -Ac credited 
Instructor training course 
or an equivalent instructor 
training program as 
determined by the 
commission; and 

(3) Submit a written request 
for the issuance of such 
certification e.xecuted by 
the e.xocutive officer of the 
institution or agency 
currently accredited, or 
which may be seeking 
accreditation, by the 
commission to make 
presentation of accredited 
training programs and for 
whom the applicant will be 
the designated school 
director . 

(^) Be currently certified 
as a criminal justice 
instructor by the North 
Carolina Criminal Justice 
Education and Training 
Standards Commission; and 

(5) Document successful 

participation in a special 
program presented by the 
North Carolina Justice 
Academy for purposes of 
familiarization and 

supplementation relevant to 
delivery of the Jailer 
Certification Course. 

.0806 TERMS AND CONDITIONS 
OF SCHOOL 
DIRECTOR CERTIFICATION 

(a) The term of certification 
as a school director is two 
years from the date the 
commission issues the 
certification, unless earlier 
terminated by action of the 
commission. Upon application 
the certification may 
subsequently be renewed by the 
commission for two-year periods. 
The application for renewal 
shall contain documentation 
meeting the requirements of Rule 
.0805(b)(2) and (3) of this 
Section . 

(b) To retain certification 

as a school director, the school 

director shall : 

( 1 ) Adequately perform the 
duties and responsibilities 
of a school director as 
specifically required in 
Rule .08'04 of this 
Subchapter . 



335 



NORTH CAROLINA REGISTER 



(2) Maintain updated copy 

of the "Jailer Certification 
Instructor Notebook" 

assigned to each accredited 
school . 

.0807 SUSPENSION: REVOCATION: 
DENIAL: SCHOOL DIRECTOR 
CERTIFICATION 

(a) The commission may deny, 
suspend, or revoke certification 
of a school director v-jhen tlie 
commission finds that the person 
has failed to meet or 
continuously maintain any of the 
requirements for qualification 
or through performance fails to 
comply with program rules and 
procedures of the commission or 
otherwise demonstrates 
incompentence . 

(b) Prior to the commission's 
action denying, suspending, or 
revoking a school director's 
certification, the Slieriffs' 
Standards Division may notify 
the person that a deficiency 
appears to exist and may 
attempt, in an advisory 
capacity, to assist the person 
in correcting the deficiency. 

SECTION .0900 - ACCREDITATION 
OF JUSTICE OFFICER SCHOOLS 
AND TRAINING COURSES 

.0901 ACCREDITATION: JUSTICE 

OFFICER SCHOOLS/TRAINING 

COURSES 

The rules covering the 
accreditation of Criminal 
Justice Schools and training 
courses, codified as Title 12, 
Subchapter 9C, Section .0400 of 
the North Carolina 
Administrative Code, effective 
January 1, 1981 and previously 
adopted by the North Carolina 
Criminal Justice Education and 
Training Standards Commission, 
are hereby adopted by reference 
to apply to actions of the North 
Carolina Sheriffs' Education and 
Training Standards Commission 
w ith the exception of the Jail 
Instructor . 

.0902 ACCREDITATION OF 

SCHOOL TO DELIVER A JAILER 
CERTIFICATION COURSE 

(a) An institution or agency 
to be accredited to deliver a 
Jailer Certification Course must 
submit a Form F-7 requesting 
school accreditation. 

(b) School accreditation 
shall be granted for a period of 
two years and shall remain 
effective until surrendered, 
suspended, revolced or 
expiration . 

(c) Tlie commission may suspend 
or revoke the accreditation of a 
school when it finds tliat the 



school has failed to meet or to 



continuously 
I'cqairejncnt , 
procedure 
accreditation 
.0803(c) . 



maint.Tin any 

standard or 

for school 

as required by 



.0903 REPORTS OF 

TPvAINING COURSE 

PRESENTATION AND COMPLETION 

Eacli presentation of the 

Jailer Certification Course 

shall be reported to the 

commission as follows; 

( 1 ) After acquiring 
accreditation for the course 
and before commencing each 
delivery of the course, the 
school director shall notify 
the commission of the 
school's intent to offer the 
training course by submitting 
a Prc-Delivery Report of 
Training Course Presentation 
(Form F-7A); and 

(2) Upon completing delivery 
of the accredited course, and 
not more than 1 days after 
receiving from the 
commission's representative 
the Report of E.xamination 
Scores, the school director 
shall notify the commission 
regarding the progress and 
achievement of each enrolled 
trainee by submitting a 
Post-Delivery Report of 
Training Course Presentation 
(Form F-7B) . 

SECTION .1100 - MINIMUM 

STANDARDS FOR JUSTICE 
OFFICERS INSTRUCTORS 

.1101 CERTIFICATION OF 

INSTRUCTORS FOR JAILER 
TRAINING COURSES 

(a) Any person participating 
in a commission-accredited 
justice officer training course 
or program as an instructor, 
teacher professor, lecturer, or 
other participant making 
presentations to the class shall 
first be certified by the 
commission as an instructor. 

(fa) Any existing valid 
General Instructor 

Certifications previously issued 
by tiie Nortli Carolina Criminal 
Justice Education and Training 
Standards Commission shall be 
accepted by the North Carolina 
Sheriffs' Education and Training 
Standards Commission until 
January 1 , 1988 . 

(c) The rules covering the 
certification of instructors, 
codified as Title 12, Subchapter 
9B, Section .0300 of the North 
Carolina Administrative Code, 
effective January 1, 1981 and 
previously adopted by the North 
Carolina Criminal Justice 



NORTH CAROLINA REGISTER 



337 



Education and Training Standards 
Commission, are hereby adopted 
by reference to apply to actions 
of the North Carolina Sheriffs' 
Education and Training Staiidards 
Commission vjitli the exception of 

instructor for Jailer 

Certification Course. 



.1102 GENERAL JAIL 

INSTRUCTOR CERTIFICATI 
After January 1, 1988 an 
applicant for General 
Instructor Certification 
meet the follovjing require 
(1) Present documentai'y 
evideiice demonstrating 
the applicant : 

(a) has attended and 
successfully complete 
Nortli Carolina She 
Education and Tr 
Standards Comm 
approved 120 hours 
Training Course; 

(b) has at least 2 year 
of experience as a j 
and; 

(c) present evidence sh 
applicant holds 
General Inst 
Certification . 



1 103 



ON 

Jailer 

shall 

mcnts : 

that 



d the 
riffs' 
aining 
ission 
Jail 

s 
ailer , 

owing 

valid 
ructor 



automatically 
from the date 



TERMS AND CONDITIONS 
OF GENERAL JAIL 
INSTRUCTOR CERTIFICATION 

(a) An applicant meeting the 
requirements for certification 
as a General Jail Instructor 
shall . for the first 1 2 months 
of certification, be in a 
probationary status. The 
General Jail Instructor 
Certification, probationary 
status, shall 
e.xpire 12 months 
of issuance . 

(b) The probationary 
instructor v;ill be awarded full 
General Jail Instructor Status 
at the end of the probationary 
period if the instructor submits 
to the commission: 

( 1 ) a favorable 
recommendation from a school 
director accompanied by 
certification on a 
comm ission -approved 
Instructor Evaluation Form 
that the instructor 
satisfactorily taught a 
minimum of four hours in a 
commission-accredited course 
during his/her probationary 
year; or 

(2) a favorable written 
evaluation by a commission 
memljer or staff member based 
on a on-site classroom 
evaluation of tlie 
probationary instructor in a 
commission-accredited 
course. Such evaluation 
will be certified on a 



comm ission- approved 
Instructor Evaluation Form. 
In addition, instructors 
evaluated by a commission or 
staff member must also teach 
a minimum of four hours in a 
commission-accredited Jailer 
Training Course. 

(c) General Instructor 
Certification is continuous so 
long as the instructor submits 
to the commission every two 
years : 

( 1 ) a favorable 

recommendation from a school 
director accompanied by 
certification on a 
commission-approved 
Instructor Evaluation Form 
that the instructor 
satisfactorily taught a 
minimum of four hours in a 
commission-accredited course 
during the previous two year 
period (the date General 
Instructor Certification is 
originally issued is the 
aniversary date from which 
each tv;o year period is 
figured ) ; or 

C2) a favorable written 

evaluation by a commission 
member or staff member based 
on a minimum four hour, 
on-site classroom 

observation of the 
instructor in a 
commission-accredited Jailer 
Training Course. 

(d) If an instructor does not 
teach a minimum of four hours 
during each two year period 
follov;ing the awarding of his 
General Jailer Instructor 
Certification, his certification 
automatically e.xpires, and he 
must then apply for probationary 
instructor certification status 
and must meet the requirements 
set forth in this Section. 

TITLE 13 - DEPARTMENT OF LABOR 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the Boiler and Pressure 
Vessel Division intends to amend 
regulation cited as 13 NCAC 13 
.0101(16). The purpose of the 
proposed regulation is to 
include certain unfired pressure 
vessels used in air 
conditioning/refrigeration 
systems v.'hich meet specified 
conditions within the definition 
of nonstandard pressure vessels. 

The proposed effective date of 
tliis action is December 1, 1986. 



Statutory Authority; 
95-69.11; 95-69.14. 



G.S. 



338 



NORTH CAROLINA REGISTER 



The public hearing will be 
conducted at 2:00 p.m. on 
Wednesday. September 17, 1986 at 
One South Wilmington St . , 
Raleigh, NC , Highway Building 
Auditorium, first floor. 



Comment Procedures: P 
wanting to present 
testimony at the hearing, o 
v;ant to have written test 
read at the hearing, s 
provide a written summary o 
proposed testimony to 
department by September 
1986. Oral presentations 
be limited to 15 minutes 
Written statements not pres 
at the hearing will be ace 
by the department 
September 29, 1986. 
correspondence should 
directed to: E.A. Eaton, 
Dept . of Labor, Boile 
Pressure Vessel Division, 2 
Jones St., Raleigh, NC 2 
Interpreters for the he 
impaired will be made avai 
if requested 24 hours 
advance . 

CHAPTER 13 - BOILER AND 
PRESSURE VESSEL 



eople 

oral 

r who 

imony 

hould 

f the 

the 

12, 

will 

each . 

ented 

epted 

until 

All 

be 

N.C. 

r & 

14 W. 

7603. 

aring 

lable 

in 



SECTION 



,0100 - GENERAL 
PROVISIONS 



.0101 DEFINITIONS 
(15) "Nonstandard boiler 
or pressure vessel" means: 

(a) power boilers contracted 
for or installed before 
December 7, 1935; 

(b) heating boilers 
contracted for or installed 
before January 1, 1951; 

(c) pressure vessels 
contracted for or installed 
before January 1, 1976; arrd 

(d) non ASME Code constructed 
hydropneumatic storage tanks 
containing water under 
pressure at ambient 
temperatures contracted for 
or installed before January 
1 , 1986 ; and 

(o) unfired pressure vessels 

used in air 

conditioning/ refrigeration 
systems operated entirely 



full 



of 



water or 



other 



1 iquid 



v.'hich 



not 



materially more hazardous 
than water contracted for or 
installed before July 1 , 
1985, provided the ovrnor or 
user has registered the 
vessel with the division 
prior to February 28. 1987. 
and the manufacturer of such 
vessel provides an extended 
v/arranty or similar 



protect ion 



vihen 



the 



such vessel m a y be operated 

without serious threat to 



li fe or property. 



At the 



t ime 



the 



registers 



the 



;el 



he 



rihall 



provide 



full 



d ocu mentation regarding the 

date the vessel v;as 

contracted for, the date the 
vessel was iiistalled, the 
ago of the vessel, the date 
the owner or user accepted 
the vessel, a copy of any 
i nsurance policy covering 



tlio 



vessel 



and 



full 



explanation of the location 
of the vessel including its 
proximity to electric v/irinq 
or conduits r.nd an analysis 
of any possible damage or 

injury to persons or 

property that vjould occur 
should the vessel rupture. 
Follov-jing such registration 

and appl icat ion, the 

commissioner shall make his 
decision concerning the type 
of warranty or similar 
protection that will be 



I'eguired within 



30 



days 



immediately follov;ing the 
receipt of t l ie registration 
and application. 
Note: This classification 
includes ASME Code 
constructed boilers and 
pressure vessels installed 
or contracted for prior to 
the enactment of applicable 
legislation regulating its 
use . 

TITLE 15 - NATURAL RESOURCES AND 
COMMUNITY DEVELOPMENT 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the Environmental 
Management Commission intends to 
amend regulation cited 15 NCAC 
2B .0311. The purpose of the 
proposed regulation is to 
reclassify the Myrtle Grove 
Sound Yacht Basin (south of 
Snows Cut) from Class SA to 
either Class SB or SC . This 
reclassification is being 
i-ecommendod based on information 
whicJi indicates that there is 
not a shellfish resource in the 
area and the area has not been 
open for shellfishing since 
1947. Information on the 
suitability and use of the area 
for swimming is requested from 
tlie publ ic . 

The proposed effective date of 
this action is January 1, 1987. 



Statutory 
143-214. 1 . 



Authority : 



G.S. 



commissioner determines that 



NORTH CAROLINA REGISTER 



339 



The public hearing will be 
conducted at 7:00 p.m. on 
September 17, 1936 at Marine 
Resources Center - Fort Fisher, 
U.S. Hwy. ^21 South, Kure Beach, 
NC. 

Comment Procedures : All persons 
interested in this natter are 
invited to attend. Comments, 
statements, data. and other 
information may be submitted in 
writing prior to, during, or 
within 30 days after the hearing 
or may be presented orally at 
the hearing. Oral statononts 
may be limited to five minutes 
at the discretion of the hearing 
officer. For futlicr information 
or the submission of written 
comments, contact Bill 
Kreutzborgcr , DEM, P.O. Bo.x 
27687, Raleigh, NC, 27611, (919) 
733-5083. 



Statutory 
143-214.1 . 



Authority : 



G.S. 



SUBCHAPTER 2B - 
STANDARDS : 



SURFACE WATER 
MONITORIKG 



SECTION .0300 ASSIGNMENT OF 
STREAM CLASSIFICATIONS 



The public hearing will be 
conducted at 7:00 p.m. on 
September 13, 1986 at North 
Carolina Aquarium (formerly the 
Marine Resources Center), 
Roosevelt Drive (off Hwy. NC 
58), Pine Knoll Shores, North 
Carolina . 

Comment Procedures: All persons 
interested in this matter are 
invited to attend. Comments, 
statements, data, and other 
information may be submitted in 
writing prior to, during, or 
within 30 days after the hearing 
or may be presented orally at 
the hearing. Oral statements 
may be limited to five minutes 
at the discretion of the hearing 
officer. For further information 
or the submission of written 
comments, contact Bill 
Kreutzberger , DEM, P.O. Bo.x 
27687, Raleigh, NC , 27611. 
Telephone Number: (919) 
733-5083. 



.0311 CAPE FEAR RIVER BASIN 
(b) The Cape Foar River Basin 
Schedule of Classification and 



SUBCHAPTER 2B - 
ST.ANDARDS : 



SURFACE WATER 
MONITORING 



Water 

amended 
(1) 
(2) 
(3) 
(4) 
(5) 
(6) 
(7) 
(8) 
(9) 
(10) 
(11 ) 



Quality Standards 
effective : 



v.'as 



March 1 , 
December 
December 
August 9, 
April 1 , 
December 
January 1 
August 1 , 
December 
February 
January 1 



1977; 

13, 1979; 

14, 1980; 
1981 ; 

1982: 



, 1983; 

1985; 
1935; 
, 1985; 
. 1986; 

1986. 



Notice is hereby given in 
accordance with G.S. 150B-12 
that the Environmental 
Management Commission intends to 
amend regulation cited as 15 
NCAC 2B .0312. The purpose of 
the proposed regulation is to 
reclassify the freshwater swamp 
forest of the Roosevelt Natural 
Area as Class C-swamp and to 
classify all viaters (freshwater 
and tidal saltwater) of the 
Roosevelt Natural Area as 
Outstanding Resource Waters. 
These actions will specifically 
classify the waters of tlic 
natural area and vfill provide 
additional protection to the 
unique ecological 

cliaracterist ics of the area. 

The proposed effective date of 
this action is January 1, 1987. 



SECTION .0300 ASSIGNMENT OF 
STREAM CLASSIFICATION 

.0312 WHITE OAK RIVER BASIN 
(b) The V.'hite Oak River Basin 
Schedule of Classification and 
Ivater Quality Standards was 
amended effective: 

(1) December 13, 1979; 

(2) January 1 , 1987. 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the Wildlife Resources 
Commission intends to amend 
regulation cited as 15 NCAC lOF 
.0332(b). The purpose of the 
proposed regulations is to limit 
boats to no-v.'ake speed within 50 
yards of Taylorsville Beach 
Marina on Lake Hickory in 
Alexander County. 

Tlie proposed effective date of 
this action is January 1, 1987. 

Statutory Authority: G.S. 75A-3; 
75A-15. 

The public hearing will be 

conducted at 9:00 a.m. on 

September 15, 1986 at Room 386, 

Archdale Bldg., 512 N. Salisbury 
Street, Raleigh, NC . 

Comment Procedures: Interested 
persons may present their views 
either orally or in writing at 
the hearing. In addition, the 



340 



NORTH CAROLINA REGISTER 



record of hearing will be open 
for receipt of written comments 
from September 16 to 5:00 p.m. 
on October 17, 1986. Such 
written comments must be 
delivered or mailed to the 
VJildlife Resources Commission, 
Archdale Bldg., 512 N. Salisbury 
Street, Raleigh, NC 27611. 



SUBCHAPTER lOF 



SECTION .0300 



- MOTORBOATS AND 
V.'ATER SAFETY 

LOCAL WATER 

SAFETY 

REGULATIONS 



.0332 ALEXANDER COUNTY 

(a) Regulated .Area. This Rule 
applies only to those vjaters of 
Lake Hickory v;hich are located 
in Alexander County. 

(b) Speed Limit. No person 
shall operate any motorboat or 
vessel at greater than no-wake 
speed within 50 yards of 
Tpylorsville Beach Marina or 
within 50 yards of any public 
boat launching ramp while on the 
waters of the regulated area 
designated in Paragraph (a) of 
this Rule. 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the N. C. Wildlife 
Resources Comnission intends to 
repeal regulations cited as 15 
NCAC lOH .0601 through .0609. 
The purpose of the proposed 
regulations is to eliminate 
regulations applying to 
privately-owned hunting grounds 
which were adopted in 1976 and 
which vjere made obsolete by 
Article 21A of Chapter 113 of 
the General Statutes regulating 
hunting and fishing on 
registered property, effective 
January 1, 1982. 

The proposed effective date of 
this action is January 1, 1987. 



Statutory 

113-134; 

113-306. 



Authority: G.S. 
113-264; 113-305; 



The public hearing v;ill be 
conducted at 9:00 a.m. on 
September 15, 1986 at Room 386, 
Archdale Building, 512 N. 
Salisbury Street, Raleigh, NC . 

Comment Procedures: Interested 
persons may present their views 
either orally or in writing at 
the hearing. In addition, the 
record of hearing v.'ill be open 
for receipt of written comments 
from September 16, 1986, to 5:00 
p.m. on October 17, 1986. Such 
written comments must be 



delivered or mailed to The 
Wildlife Resources Commission, 
512 N. Salisbury Street, 
Archdale Bldg., Raleigh, North 
Carolina 2761 1 . 



SUBCHAPTER 1 OH 



SECTION .0600 



- REGULATED 
ACTIVITES 

PRIVATELY OWNED 
PUBLIC HUNTING 
GROUNDS 



.0601 "RENEW" (REPEALED) 

.0602 DEFINITIONS (REPEALED) 

.0603 PURPOSES (REPEALED) 

.0604 REQUIREMENTS (REPEALED) 

.0505 COOPERATIVE AGREEMENT 
(REPEALED) 



.0606 POSTING (REPEALED) 



.0607 



,0608 



HUNTING PERMITS; 
(REPEALED) 



FORMS 



APPLICATION OF STATE LAW 
(REPEALED) 



,0609 RESPONSIBILITY OF 
HUNTERS (REPEALED) 



TITLE 21 



LICENSING BOARDS 



Notice is liereby given in 
accordance with G.S. 150B-12 
that tlie N.C. Veterinary Medical 
Board intends to adopt and amend 
regulations cited as 21 NCAC 66 
.0206; .0309; .0601. The 
purpose of the proposed 
regulations is to: .0206 - to 
upgrade mandatory continuing 
education as a condition 
precedent to license renewal and 
to exempt first-year licensees 
from requirements of continuing 
education; .0309 - to permit 
petitions for inactive status of 
licensees; .0601 - to establish 
committee to investigate 
complaints . 

The proposed effective date of 
tliis action is December 1, 1986. 

Statutory Autliority: G.S. 
90-185( 1 )(2)(6); 90-1 85( 3 ) ( 6 ) ; 

90-186(1 ) . 

Tlic public hearing will be 
conducted at 9:00 a.m. on 
October 17, 1986 at 741 West 
Jolmson Street, Raleigh, N.C. 
Telephone Number: 919-733-7689. 

Comment Procedures: Written 
comments, opinions and arguments 
concerning these adoptions and 
amendment must be submitted by 
10-12-86 to T. F. Zweigart, DVM, 



NORTH CAROLINA REGISTER 



341 



Executive Secretary, North 
Carolina Veterinary Medical 
Board, P.O. Bo.x 12587, Raleigh, 
N. C. Oral comments for no more 
tlian 10 minutes may be presented 
at the hearing. 



CHAPTER 66 - VETERINARY MEDICINE 

SECTION .0200 PRACTICE OF 
VETERINARY MEDICINE 

.0206 MINIMUM STANDARDS 
FOR CONTINUING 
EDUCATION 
The "minimum standards 
for continuing veterinary 
medical education," which 
standards shall be a condition 
precedent to the renewal of a 
license, shall be as follows: 

(1) Veterinarians are 
required to earn -1-& ]_5 
credit hours each year 
before becoming eligible for 
license renev;al . 

(2) Veterinarians unable 

to earn credits because of 
sickness or other 
justifiable reasons may, at 
the discretion of the board, 
be exempt fro.Ti all or part 
of tlic credit requirements. 

(3) Credit hours may 

be earned as follovjs: one 
hour credit for each hour of 
attendance at in-depth 
seminars such as: seminars 
sponsored by A.V.M.A., 
A.A.H..'\.. state association, 
academies, schools of 
veterinary medicine, etc. 
except only one hour credit 
be given for each local 
sectional meeting, 

veterinary audio review (one 
hour per year). 

(4) Each veterinarian 

must keep a record of 
credit hours earned. Eacli 
year he will be required to 
certify as to the number of 
credit hours earned on a 
form to be provided by the 
board. The form will be 
mailed to each veterinarian 
at the time of annual 
renewal . 

(5) For one year after 

reccivincT an init ital 

license by exami n ation. a 
veterinarian shall not bo 
required to earn continuing 
education credits but in 
lieu thereof shall attend a 
board sponsored seminar, 
available tv/ico a year to 
first year licensees during 
the oxnnination period. 

SECTION .0300 - EXAMINATION 
AND LICENSING PROCEDURES 



.0309 PETITION FOR 
INACTIVE STATUS 

(a) Any licensed veterinarian 
who is in good standing with the 
board and vjho has ceased the 
practice of veterinary medicine 
within the State of North 
Carolina may apply for inactive 
status. The board, in its 
discretion, may place the 
licensed veterinarian on an 
inactive list of members and 
thereafter the licensed 
veterinarian who has obtained 
the inactive status sliall not 
practice veterinary medicine or 
be required to pay the annual 
license renewal as prescribed in 
G.S. 90-187.5 and board Rule 
.0302 or required to earn 
continuing education credits. 

(b) Any veterinarian who 

has been placed on inactive 
status and wlio desires to bo 
reinstated or to resume the 
practice of veterinary medicine 
vjithin the State of North 
Carolina may be reinstated 
vjithin the discretion of the 
board upon the determination by 
the board that the inactive 
veterinarian is competent to 
practice veterinary medicine; 
that the veterinarian pay the 
required license renewal fee for 
the current year in which the 
application is filed; and that 
the veterinarian earn the 
required continuing education 
credits in the year preceding 
reinstatement . 

SECTION .0600 ADMINISTRATIVE 
HEARINGS: PROCEDURES 

.0601 COMMITTEE ON 

INVESTIGATIONS 

Ca) Upon receipt of a 
charge alleging misconduct 
against a licensee or registrant 
of the board, the executive 
secretary shall inform the 
accused party of the nature of 
the charges as filed with the 
board . 

(b) The accused party 

shall respond to the charges by 
filing a v;ritten answer with the 
board within 20 days of the 
receipt of the notification of 
charges . 

(c) The complaining 

party shall be provided with a 
copy of the accused party's 
ansv;er and within 20 days from 
receipt thereof shall file a 
reply to the accused party's 
answer . 

(d) The charges as filed 

v.ith the board, the answer and 
reply may be referred to the 
Committee on Investigations 
(hereinafter referred to as 
"Committee" ) . The committee 



342 



NORTH CAROLINA REGISTER 



shall consist of three members 
of the board, one of whom shall 
serve as chairman. 

(e) The committe shall 
investigate the complaints 
referred to it by the board and 
as part of the investigation 
may : 

( 1 ) Assign the complaint 

to the board's investigator 
who shall submit a written 
report to the committee. 

(2) Invite the complaining 
party and the accused party 
before the conmittee to 
receive their oral 
statements as part of the 
investigation, but neither 
party shall be compelled to 
attend . 

(3) Conduct any other 

type of investigation as is 
deemed appropriate by the 
committee . 

(f) Upon the completion 

of the investigation, the 
committee shall determine 
wliether or not there is probable 
cause to believe that the 
accused party has violated any 
standard of misconduct which 
would justify a disciplinary 
hearing based upon the grounds 
as specified in Article 11 of 
Cliapter 90 of the North Carolina 
General Statutes or Title 21, 
Chapter 66 of the North 
Carolina Administrative Code. 

(g) If probable cause is 
found, tlie committee shall 
direct the legal counsel for the 
board to file a Notice of 
Hearing . 

(h) If probable cause is 
found, but it is determined that 
a disciplinary hearing is not 
warranted, the committee may 
issue a reprimand to the accused 
party. A record of such 
reprimand shall be mailed to tJie 
accused party and within 15 days 
after receipt of the reprimand 
the accused party may refuse the 
reprimand and request that a 
Notice of Hearing be issued 
pursuant to Chapter 150B of the 
North Carolina General Statutes 
or Title 21, Chapter 66 of the 
North Carolina Administrative 
Code. Sucli refusal and request 
shall be addressed to the 
committee and filed v;ith the 
executive secretary for the 
board. The legal counsel for 
the board shall thereafter 
prepare and file a Notice of 
Hearing. If the letter of 
reprimand is accepted, a record 
of tlie reprimand shall be 
maintained in the office of the 
board . 

(i) If no probable cause 
is found, the committee shall 
dismiss the charges as unfounded 



or trivial and prepare a 
statement of the reasons 
therefore which shall bo mailed 
to the accused party and the 
complaining party. 

(j) If no probable cause 
is found, but it is determined 
by the committe that the conduct 
of the accused party is not in 
accord with accepted 
professional practice or may be 
the subject of discipline if 
continued or repeated, the 
committee may issue a letter of 
caution to the accused party 
stating that the conduct, while 
not the basis for a disciplinary 
hearing, is not professionally 
acceptable or may be the basis 
for a disciplinary hearing if 
repeated. A record of such 
letter of caution shall be 
maintained in the office of the 
board . 

(k) A board member v;lio 
has served on the committee is 
deemed disqualified to act as a 
Hearing Officer in any 
administrative disciplinary 
proceeding brought pursuant to a 
Notice of Hearing for which that 
member has sat in an 
investigative capacity as a 
member or chairman of the 
committee . 

Renumber Section .0600 - 
Administrative Hearings 

Procedures as follows : 

.0601 to .0602 

.0602 to .0603 

.0603 to .0604 

.0604 to .0605 

.0605 to .0606 

.0606 to .0607 

.0607 to .0608 

.0603 to .0609 

.0609 to .0610. 



TITLE 25 



STATE PERSONNEL 



Notice is hereby given in 
accordance vjith G.S. 150B-12 
that the Office of State 
Personnel/State Personnel 
Commission intends to adopt 
regulation cited as 25 NCAC 
IB. 0354. The purpose of the 
proposed regulation is to 
provide e.xplanatory definitions 
of "Contested case arising under 
Chapter 126", "Disciplinary 
Action" and "Involuntary 
Resignation" for persons 
involved in contested case 
proceedings under Chapter 126. 

Tlie proposed effective date of 
this action is December 1, 1986. 

Statutory Authority: G.S. 
126-4(6), 126-4C7a), 126-37. 

The public hearing will be 
conducted at 9:00 a.m. on 



NORTH CAROLINA REGISTER 



343 



October 7, 1986 
Street, Raleigh, 



at 101 W. Peace 
North Carolina. 



Chapter 
only 



126" 
the 



25 NCAC ID 



Comment Procedures : Any persons 
may request information or 
copies of the proposed rule by 
writing or calling Dralce 
Maynard, APA Coordinator, Office 
of State Personnel, 116 W. Jones 
St., Raleigh, M.C. 27611, (919) 
733-7112. Written comments on 
this regulation may be sent to 
Mr . Maynard at the above 
address. Written and oral (no 
more than ten minutes) comments 
on this regulation may be 
presented at the liearing. 
Notice should be given to Mr. 
Maynard at least 3 working days 
prior to the hearing if you 
desire to speak. 



SUBCHAPTER IB - STATE 

PERSONNEL COMMISSION 

SECTION .0300 - CONTESTED CASE 
HEARING PROCEDURE 

.0354 DEFINITIONS 

(a) A "contested 
case arising under 
shall include 
following : 

( 1 ) a dismissal ; 

(2) a demotion 
as defined in 
.0401 ; 

(3) a suspension 
without pay, 
investiga t ive 
disciplinary purposes; 

(4) an involuntary 
resignation ; 

(5) a request to 

remove allegedly inaccurate 
and/or misleading material 
from a personnel file; 

(6) an allegation 

of discrimination prohibited 
by N.C. Gen. Stat. 126-16 in 
hiring, promotion, training, 
transfer. demotion, 

reduction in force or 
dismissal . 

(b) A "Disciplinary action" 
which is a "contested case 
arising under Oiapter 126 
consists of the following 
actions only: 

( 1 ) a dismissal ; 

(2) a demotion; 

(3) a suspension 
Warnings, oral or 
not "disciplinary actions" 
which are "contested cases 
arising under Chapter 126". 

(c) An "involuntary 
resignation" is one in vjhicli 
the employee is given the 
choice of resigning or being 
fired, and the employee cliooses 
resignation. Those cases in 
which the employee offers to 



whether 



for 
or 



without 
written 



pay. 
are 



resign, to avoid being 
dismissed, are deemed to be 
voluntary resignations. 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the Office of State 
Personnel/State Personnel 
Commission intends to adopt 
regulation cited as 25 NCAC 1C 
.0413. The purpose of the 
proposed regulation is to 
provide for a new type of 
appointment to accommodate 
special employment needs of 
agencies in situations 
involving fluctuating seasonal 
work force demands . 

The proposed effective date of 
this action is December 1, 
1986. 



Statutory 
126-4. 



Authority : 



G.S. 



The public hearing will be 
conducted at 9:00 a.m. on 
October 7, 1986 at 101 W. Peace 
Street, Raleigh, North 
Carolina . 

Comment Procedures: Any person 
may request information or 
copies of the proposed rule by 
writing or calling Drake 
Maynard, APA Coordinator, 
Office of State Personnel, 116 
W. Jones St., Raleigh, N.C. 
27611, (919) 733-7112. Written 
comments on this regulation may 
be sent to Mr. Maynard at the 
above address. Written and 
oral (no more than ten minutes) 
comments on this regulation may 
be presented at the hearing. 
Notice should be given to Mr. 
Maynard at least 3 v;orking days 
prior to the hearing if you 
desire to speak. 



SUBCHAPTER IC - PERSONNEL 
ADMINISTRATION 

SECTION .0400 - APPOINTMENT 

.0413 SEASONAL HOURLY 
An appointment for 
a limited term, typically 
involving at least twelve weeks, 
but not a period which could be 
construed as 

continuous/permanent employment. 
This type appointment may apply 
to homogeneous classes of v?ork 
in program or organizational 
situations having fluctuating 
seasonal work force demands. 
Employees will be paid on an 
hourly basis, receive policy 
defined fringe benefits, and be 
subject to modified personnel 
policies wliich may be set forth 



344 



NORTH CAROLINA REGISTER 



in other sections 
Personnel Manual . 



of the 



TITLE 26 - OFFICE OF 
ADMINISTRATIVE HEARINGS 

Notice is hereby given in 
accordance with G.S. 150B-12 
that the OAH - Hearings Division 
intends to adopt regulations 
cited as 26 NCAC 1 .0002 and 
.0003. The purpose of the 
proposed regulations is to: 
.0002 - to state when a person 
may obtain a declaratory ruling 
concerning a rule of the Office 
of Administrative Hearings; 

.0003 - to set out the 
procedure for determining what 
insurance will be available 
through payroll deductions to 
employees in the Office of 
Administrative Hearings. 

The proposed effective date of 
this action is December 1. 1986. 

Statutory Authority: G.S. 
58-194.3; 150B-11; 150B-17. 

The public hearing will be 
conducted at 10:00 a.m. on 
October 15, 1986 at 
Williams-Cross Building, 
Hillsborough Street, Room 204, 
Raleigh, N. C. 

Comment Procedures: Written 
comments may be sent to: Office 
of Administrative Hearings, P.O. 
Drawer 11666, Raleigh. N. C. 
27604, Attn: Molly Mason. 
Comments must be submitted by 
October 10, 1986. 



CHAPTER 1 - GENERAL 

.0002 DECLARATORY RULINGS: 
AVAILABILITY 

Declaratory rulings pursuant 
to G.S. 150B-17 will be issued 
by the Office of Administrative 
Hearings upon vjritten request 
only on the validity of a rule 
of the Office of Adiiiinistrat ive 
Hearings or on the applicability 
of a rule or order of the Office 
of Administrative Hearings to 
stipulated facts. A declaratory 
ruling vjill not be issued on a 
matter requiring an evidentiary 
proceeding . 



periodically, but not less than 
once a year. to review the 
agency insurance program . 

(c) At least anriually, and 
prior to advertising for 
proposals or reviewing the 
current insurance program, the 
committee shall ask all 
employees tlioir preferences for 
insurance availability. Based 
on information gathered, the 
committee shall decide v;hat 
types of insurance coverage to 
consider . 

(d) Advertisement for 
submission of proposals shall be 
published in the following 
nov.'spapers : News and Observer, 
Charlotte Observer, Asheville 
Citizen-Times and the Wilmington 
Star. 

(e) Any Insurer wishing to 
make a presentation to the 
Committee must submit a written 
proposal outlining its plan no 
loss than 30 days prior to the 
date of tlie Committee meeting. 

(f) All proposals shall be 
sent to the committee addressed 
as follov;s: Chairman, Office of 
Administrative Hearings, 
Employee Insurance Com.mittee , P. 
0. Drawer 11666, Raleigh, N.C. 
27604. 

(g) The Committee may take no 
action unless a majority of the 
committee members vote for the 
action, and no vote may be taken 
unless all of the committee 
members are present . 



Notice is hereby given in 
accordance with G.S. 150B-12 
that the OAH - Hearing Division 
intends to amend regulations 
cited as 26 NCAC 3 .0011; .0026; 
.0028. Tlie purpose of the 
proposed regulations is to: 
.0011 (a) - to amend a rule 
adopted pursuant to a statute 
that vjas repealed by Chapter 
1022, 1985 Session Laws (Regular 
Session 1986); .0026 - to amend 
the rule to reflect statutory 
amend.Tients passed by the General 
Assembly in Chapter 1022, 1985 
Session Laws (Regular Session 
1986); .0028 - to amend the rule 
to reflect statutory amendments 
passed by the General Assembly 
in Chapter 1022, 1985 Session 
Laws (Regular Session 1986). 



.0003 EMPLOYEE INSURANCE 
COMMITTEE 

(a) The Employee Insurance 
Committee of the Office of 
Administrative Hearings shall be 
constituted pursuant to G.S. 
58-194.3, to make insurance 
available to employees through 
payroll deduction. 

(b) The Committee shall meet 



The proposed effective date of 
this action is December 1, 1986. 

Statutory Authority: G.S. 7A-751 
7A-756; ISOB-ll; 1503-23; 
150B-26; 150B-34; and 150B-36. 

The public hearing will be 
conducted at 10:00 a.m. on 
October 15, 1986 at 



NORTH CAROLINA REGISTER 



345 



Williams-Cross 
Hillsborough Street, 
Raleigh, N. C. 



Building, 
Room 204, 



Comment Procedures: Written 
comments may be sent to: Office 
of Administrative Hearings, P. 
0. Drav;er 11666, Rnleigh, N.C. 
27604, Attn: Molly Mason. 
Comments must be submitted by 
October 10. 1986. 

.0011 CONSOLIDATION OF CASES 
(a) The Chief Hearing Officer 
of the Office of Administrative 
Hearings may order a joint 
hearing of any matters at issue 
in contested cases involving 
common questions of lav; or fact 
or multiple proceedings 
involving the same or related 
parties, or may order the cases 
consolidated or make other 
orders to reduce costs or delay 
in the proceedings. iri 
c o nsol ida t ed c a se s -in t-ire 
Dcpar "tjrcnrb tyf Htmttm Resourcc t: 
■iTnrcrivT.-Trg mul t iple a g gr icv.;d 
p^rr^rorrs-r -fc+r:; C-iTiirf H e a r in g 
Offic e r shall z ^Lsign hearing 



o ffice r s orf 
Adminis tr a t ive 
acc o rdan ce Trirth 



-Hre Offi ce- 
Hear ings 
G-rS-T -1-5&B 2 0. 



o^ 



.0026 HEARING OFFICER'S 

RECOMMENDATION 
(a) Unle r^s The lioaring officer 
ters t ic t c r minc d -in a i icord jnc c 
m±h €-rS-r 150D 53(b)(9 4 ttert a 
rule zrs appl i e d -in -Hre c n ^ c -irs 
void — he shall, v;ithin 30 days 
after the expiration of the 
period for filing exceptions to 
the hearing officer's proposed 
decision, prepare and serve upon 
all parties his recommended 
decision, opinion. order, or 
report which shall become a part 
of the official record in the 
case and v.'hich shall contain: 
CI ) All of the items 

specified in Subparagraplis 
.0025 (c)(1) through (8) of 
this Cliapter; and 
(2) A statement identifying 
the agency that v?ill make 
the final decision in the 
case . 



•fb-)- -tf -Hre hearing offic er 
h-as d e t ermined -irt accordance 
vrrth G-rS-r -l^& B 35(b)(9) ttert a 
rul e cTS a p pli ed in "Hre case is 
v o id ■ he gi- iall notif y t he 
par t i e s o-f hirs decision ami trf 
t l ' iei r r igl rb to ap p ea l: under 
Ar t icl e 4 erf Chap t e r ^-Sfrfrv 

( c ) (b ) The hearing officer 
sliall promptly forward a copy of 
tlie official record in the case 
to tlie agency. 

-trJ-^ ( c 1 Extensions of time 

limits . 

(1) Upon good cause shown, 
the Clii c f H- ear ing Offi c er 
Chief Administrative Law 
Judge may e.xtend the time 
limits for submission of the 
proposed decision, filing of 
e.xceptions, and for issuing 
the recommended decision of 
the hearing officer. 

(2) Requests for extensions 
must be submitted prior to 
the expiration of the period 
established by these Rules. 

(3) Extensions shall not be 
granted if inattention or 
procrastination cause delay, 
but shall be granted if the 
delay is attributable to 
honest mistake, accident, or 
any cause compatible with 
proper diligence. 

.0028 RECONSIDERATION OR 
REHEARING 

■fa-> After a hearing officer 
has issued a recommended 
decision, the hearing officer 
loses jurisdiction to amend the 
decision except for clerical or 
mathematical errors. -r unles s 
th e r eco m m e nd e d decision -is 
binding as a final decision 
pu L" s u a n fc tx? G . G . 1 Li OD 2o ( a ) trT" 
G-rS-r I SOD 33 (b) ( 9) . 

-(-fa-)- i-f tiro rec o nmend e d decision 
'irs b md xng ort trre agency as a 
final decision , a pe t ition -ftrr 
r econs ide r at ion trr r e h e a r in g nray 
bn filed Trit-h tlie Office erf 
Ad iii inis t i - a t iv e H earings v;i t hin 
■\^ days o-f service o-f 'Hre 
rec o mmend e d d e cisi o n upon -bhtr 
pe t itioning pal ' ty . 



346 



NORTH CAROLINA REGISTER 



FINAL RULES 

When the text of any adopted 
rule differs from the text of 
that rule as proposed, the text 
of the adopted rule is published 
in this section. 

When the text of any adopted 
rule is identical to the text of 
that as proposed, adoption of 
the rule will be noted in the 
"List of Rules Affected" and the 
text of the adopted rule will 
not be republished. 

Adopted rules filed by the 
Departments of Correction, 
Revenue and Transportation are 
published in this section. 
These departments are not 
subject to the provisions of 
G.S. 150B, Article 2 requiring 
publication of proposed rules. 

TITLE 5 - CORRECTIONS 



SUBCHAPTER 2C 



CLASSIFICATION 



SECTION .0200 - DIAGNOSTIC 
CENTERS 

.0202 ORGANIZATION 

(a) Responsibility. The 
reception, orientation, and 
diagnostic processes are subject 
to review by the diagnostic and 
classification services section 
manager on behalf of the 
Director, Division of Prisons. 
In addition, this office is 
responsible for those other 
duties specified in 5 NCAC 2A 
.0102(1). Any variation in 

pertinent procedures and 
guidelines specified heroin, or 
as specified in the Diagnostic 
or Classification Procedural 
Manuals, as amended, shall be 
immediately reported to the 
diagnostic and classifications 
services section manager, for 
review and approval . 
Administrative directives will 
be issued by this office through 
the office of the Director of 
Prisons as required to specify 
and update procedures. 

(b) Admitting Unit. 

The admitting unit receives 
inmates from sentencing courts 
and may provide for physical 
examinations, fingerprinting, 
identification photographs and 
completion of Inmate 
Classification Profiles (DC-134 
and 134A) but does not complete 
a case evaluation for 
classification purposes. 

(c) Reception Centers. The 
reception center receives 
inmates from sentencing courts 
and inmates recaptured after 
escape or returned by t]ie 



Division of Adult Probation and 
Parole or other state agencies. 
In addition to the services 
provided by an admitting unit, 
tiie reception center; 
CI) completes social 
histories ; 

(2) administers and scores 
psycliometric tests; 

(3) provides casework 
services for crisis 
intervention as necessitated 
by immediate problems of or 
with an inmate being 
processed; 

(4) evaluates each case 

to identify crime-related 
problems, correctional 
goals, need for outer 
controls, and other factors 
relating to the 
classification process. 

(d) Diagnostic Center. The 
diagnostic center receives and 
evaluates : 

( 1 ) inmates from 

sentencing courts; 
C2) inmates referred 

for reclassification; 

(3) inmates recaptured 
following escape or others 
referred to the division; 

(4) convicted but unsentenced 
offenders committed to the 
department for presentence 
diagnostic study. 

A diagnostic center, in addition 
to performing the functions of a 
reception center, must provide 
psychological examination 
services, psychiatric 

evaluations, professional 
cascworlc services, and case 
evaluations by personnel 
professionally qualified to 
interpret reports from the 
various professional 

disciplines. This information 
is made into a correctional case 
summary on which crime-related 
problem identification and 
correctional intervention may be 
based. Tlie Diagnostic Center 
staff must meet minimum 
specification of state personnel 
and standards established by the 
diagnostic and classification 
services manager and approved by 
tlie Director, Division of 
Prisons . 

(e) Procedure for Reviewing a 
Diagnostic Center. Eacli center 
vjill be reviewed annually as to 
its capability to function as an 
admitting unit, reception 
center, or diagnostic center, 
based on standards established 
by the diagnostic and 
classification services manager 
as approved by the Director, 
Division of Prisons. 

History Note: Statutory 
Authority G. S. 148-11 ; 



NORTH CAROLINA REGISTER 



347 



148-12(a); 

Eff. February 1, 1978; 

Amended Eff. September 1, 1986; 

September 29, 1978. 

.0203 PROCEDURE 
(a) Admission. These 
procedues outline the essential 
functions which must be 
performed in the initial 
admission of an inmate to the 
Division of Prisons. Only those 
facilities which are designated 
as having admitting, reception, 
or diagnostic capabilities are 
permitted to receive new 
admissions. Tlie following 
apply: 

(1) Offender Criteria. The 
criteria for accepting 
inmates are based upon age, 
se;<, type of offense, and 
length of sentence of the 
offender. In general, a 
minimum custody facility 
cannot accept a felon, and a 
medium custody or more 
secure facility cannot 
accept a misdemeanant . 
Specific guidelines are as 
f ollov-;s : 

(A) The Correctional Center 
for Women receives all 
females ; 

(B) Central Prison receives 
all male felons, 22 years 
or older, \-;ith minimum 
sentences of more than 
twenty years; 

(C) Tlie Comnand Felon 
Diagnostic Centers at 
Southern Correctional 
Center and Piedmont 
Correctional Center 
receive male felons 22 
years and older, v.'ho have 
minimum sentences 20 years 
or less; 

(D) Polk Youth Center 
receives male felons 18 
through 21 years of age; 

(E) Western Correctional 
Center receives all males 
less than 18 years old; 

(F) The Area Diagnostic 
Center at Triangle 
Correctional Center, 
Richmond County, Guilford 
II, and Rowan County 
receive all male 
misdemeanants, 18 years or 
older ; 

(G) Inmates referred from 
escape or attempted escape 
will be referred the 
designated felon or 
misdemeanant diagnostic 
center for reprocessing 
after disciplinary and 
legal procedures have been 
completed. Adult male 
felon inmates returned 
from a minimum or medium 
custody cGcai^e or 



attempted escape will be 
processed at the Command 
Diagnostic Centers. 
Youthful felon offenders 
wlio escape or attempt 
escape from minimum or 
medium custody will be 
received at the 
appropriate Youth Services 
Diagnostic Center. Felons 
escaping or attempting to 
escape from close or 
maximum custody will be 
received at Central Prison 
to av.'ait disciplinary and 
legal proceedings, 

diagnostic processing, and 
reclassification; 
(H) The parole revocation 
process requires that a 
hearing be held at or 
reasonably near the 
location where the alleged 
violation occurred. 
Inmates pending parole 
revocation will be 
transferred from the jail 
or by a probation/parole 
officer to the appropriate 
prison unit as designated 
by the Director of 
Prisons. After completion 
of the parole revocation 
hearing, parole violators 
will be processed at the 
appropriate diagnostic 
centers in accordance with 
sentence guidelines 
specified in 2C .0203(A) 
through (G). Time 
remaining to be served 
will be the determining 
factor in referring an 
inmate to a particular 
center . 

(2) Commitment Receipt. 

A true copy of the 
sentencing court's 

commitment, complete with 
the court's impressed seal 
and certification, must be 
received prior to admission. 

(3) Personal Property. 
Personal property will be 
obtained, recorded, and 
processed in a manner 
consistent with departmental 
regulations . 

(4) Search. A strip search 
will be conducted and any 
contraband confiscated and 
reported as provided in 
division regulations. 

(5) Dress. Inmates will 
dress in appropriate prison 
clothing : 

(A) "green clothes" for 
misdemeanants , 

saf ekeepers , and death 
row; and 

(B) "brown clothes" for 
felons not identified in 5 
NCAC 2C .0203 (a)(5)(A) . 

(6) Count. The receiving 



348 



NORTH CAROLINA REGISTER 



unit's count will bo updated 
and the new admission noted 
on the official daily 
population reports. 

(7) Identification. 
Appropriate measures will be 
taken to ensure the accurate 
identification of the 
inmate. These measures 
include completion of Inmate 
Classification Profile 
(DC-134 and 134A), 
Demographic Data (350C). 
fingerprints, photographing, 
and necessary distribution 
of these documents. 

(8) Physical Exam. The 
receiving unit will perform 
a physical examination of 
all nev.'ly admitted inmates 
as specified in division 
regulations . 

(b) Orientation. Newly 
admitted inmates will be 
assisted by the staff in 
adjusting to tlie prison 
environment. Orientation may 
occur on a group level or an 
individual level or a 
combination of both. An 
explanation of tlie rules, 
penalties, disciplinary 
procedures, and how to obtain 
health services vjill be 
provided. A description of the 
inmate's current situation, the 
diagnostic and classification 
process, custody levels, and a 
summary of available programs 
and work, will also be provided. 

(c) Diagnostic. Tlie 
diagnostic portion of the 
process involves professional 
evaluation of the innate to 
identify security requirements, 
crime-related problems, 
correctional goals, and required 
correctional intervention. The 
following will be accomplished: 

(1) Psycliometr ic Testing. 
Appropriate psychometric 
tests v;ill be administered, 
scored, and interpreted. 

(2) Social History Data. 
Relevant background 
information will be 
accumulated, recorded, and 
interpreted and entered into 
divisional files in 
accordance with operational 
procedures . 

(3) Interviewing and 
Counseling. To obtain 
pertinent information for 
effective classification 
decision-making and to 
assist the individual in 
making an adequate 
adjustment to incarceration, 
interviewing and counseling 
vjill be performed by 
qualified staff. 

(4) Psychological and 



Psychiatric Evaluation. As 
required either by division 
regulations or the 
offender's needs, 

psychological and 

psychiatric evaluation will 
be completed. 
(5) Classification Action 

Forms. The classification 

referral form, DC-121 I or 

DC-121-R, will be completed 

and referred to the 

appropriate classification 

committee upon completion of 

the diagnostic procedures. 

The referral will contain 

pertinent background 

information, a summary of 

relevant testing results, 

identification of the 

offender's assets and 

e-xisting or probable 

problems, recommendations 

and rationale for housing, 

custody, work and program 

assignments, and other 

pertinent information. 

(d) Special Procedures. These 

procedures present special cases 

v/hicli deviate from tlie normal 

orientation and diagnostic 

process. Tlie following 

admission procedures will be 

completed in all cases: 

( 1 ) Death Row. The 

warden at Central Prison or 
the superintendent at the 
Correctional Center for 
Women must receive capital 
punishment offenders. 

(2) Pretrial Safekeeper. 
Only the reception and 
orientation processes are 
applicable for safekeepers. 

(3) Presentence Diagnostic 
(PSD). Inmates admitted for 
presentence diagnostic 
receive the expanded 
diagnostic evaluation as 
outlined in the Diagnostic 
Center Procedural Manual . 

(4) Court Recommended Work 
Release. In any case in 
which an inmate sentenced to 
fiveyears or less is court 
recommended for work 
release, the entire 
diagnostic process is not 
applicable. Only essential 
diagnostic functions, such 
as intelligence testing, 
fundamental interviewing, 
and attempts to verify work 
release jobs will be 
accomplished. Upon 
determination of eligibility 
and verification of 
employment, the inmate will 
be referred by using the 
DC-121 for immediate 
promotion to minimum 
custody. Level III, for work 
release only. 

(5) One-third Parole Cases. 



NORTH CAROLINA REGISTER 



349 



Only as mucli of tlie 
orientation and diagnostic 
process as time permits ivill 
be completed. 
(e) Detailed procedures are 
specified in the Diagnostic 
Center Procedural Manual as 
maintained by tlie diagnostic and 
classification services section 
manager . 

History Mote: Statutory 
Authority G. S. 148-1 1 ; 
148-12(a); 

Eff . February 1 , 1978; 
Amended Eff: September 1, 1986; 
March 31 , 1981 ; 
September 29, 1978. 



TITLE 10 
SUBCHAPTER 



HUMAN RESOURCES 

18A - MONITORING 
PROCEDURES 



SECTION .0100 - REVIEW PROCESS 
FOR AREA PROGRAMS AND 
THEIR CONTRACT AGENCIES 

.0125 DEFINITIONS 
As used in tliis Section, the 

following terms have the 

meanings specified: 

(1) "APSM 40-1" moans the 
division publication 
entitled "Review Process for 
Area Programs and Their 
Contract Agencies" as 
effective September 1, 1986. 
The manual may be reviewed 
at area progarm offices, 
regional offices, or the 
Publications Office of tlic 
division. Copies may he 
obtained from the 
Publications Office of the 
division at a charge which 
cove 



rs printing and postage. 



History Note 
Authority G 
122C-141 (b) 
122C-191 (d); 
Eff. September 



Statutory 
S. 1220-113; 
122C-142(a); 



1, 1986. 



of 
a 



in 
may 



.0126 GENERAL PROVISIONS 
(2) A rule may be judged "not 
applicable" only when it 
allows options 
non-applicability or 
waiver has been granted, 
(j) In addition to tlie 
reviev; procedures prescribed 
this Section other reviews 
be conducted as follows: 

(1) Tlie division director 
may, at any time, authorize 
an on-site review of any 
component . 

(2) Any area-operated or 
contract component may, at 
any time, with tlie approval 
of the area director, 
request an on-site review 
from its respective regional 



office for the purpose(s) of 
consultation and technical 
assistance. such reviews 
shall not, however, exempt 
the component from other 
rules of this Section. 

History Note: Statutory 
Authority G.S. 122C-113; 
122C-14Hb); 122C-142(a); 
122C-191 (d); 
Eff. September 1, 1986. 

.0128 PROVISIONAL 
CERTIFICATION 

(f) If all out-of-compliance 
or licensure issues are not 
fully resolved and documented, a 
notice shall be sent to the area 
director 30 days prior to 
expiration of the provisional 
certification that 
decertification procedures will 
be initiated by the regional 
office unless a request for 
waiver of a rule has been 
approved . 

(g) A component shall not 
receive two consecutive 
provisional certifications. 



History Note 
Authority G 
122C-141 (b) 
122C-191 (d) 
Eff. September 



Statutory 
S. 122C-113; 
122C-142(a), 



1, 1986. 



.0131 ON-SITE VALIDATION 
PROCESS 

(a) Each year the division 
director shall select six area 
programs from within the State 
for an on-site validation 
process. The selection of the 
area programs for on-site 
validation shall occur following 
the self-survey by all area 
programs within a region 
scheduled for self-survey that 
fiscal year. A stratified 
sample of all components of the 
selected area programs shall be 
reviewed . 

History Note: Statutory 
Authority G.S. 122C-113; 
122C-141(b); 122C-142(a) 
122C-191 (d); 
Eff. September 1, 1986. 



TITLE 17 
SUBCHAPTER 5C 



REVENUE 

CORPORATE INCOME 
TAX 



SECTION .2500 - FOREIGN SALES 
CORPORATION (FSC) 

.2501 DOING BUSINESS 

ACTIVITIES OF FOREIGN 
SALES CORPORATION (FSC) 
Every Foreign Sales Corporation 



350 



NORTH CAROLINA REGISTER 



(FSC) doing business in this 
state shall be subject to income 
tax in this state. A FSC shall 
be considered doing business in 
this state if the United States 
business activities are in this 
state and such activities 
establish nexus. 

History Note: Statutory 
Authority G.S. 105-130.3; 
105-130.4; 105-130.6; 
105-130.7; 105-130.15; 
105-130.16; 105-262; 
Eff. August 1, 1986. 

.2502 DETERMINATION OF FSC NET 
INCOME 

The net income of a FSC shall 
be determined in accordance with 
the Revenue Laws of this State 
with no exclusion permitted for 
exempt foreign trade income as 
defined under the Internal 
Revenue Code . 

History Note: Statutory 
Authority G.S. 105-130.3; 
105-130.4; 105-130.6; 
105-130.7; 105-130.15; 
105-130.16; 105-262; 
Eff. August 1 , 1986. 

.2503 CONSOLIDATED RETURN 

Every corporation doing 
business in this state which is 
a shareholder of a FSC shall 
file a consolidated return 
including the total income as 
defined under .2502 of the FSC. 

History Note: Statutory 
Authority G.S. 105-130.3; 
105-130.4; 105-130.6; 
105-130.7; 105-130.15; 
105-130.16; 105-262; 
Eff. August 1, 1986. 

.2504 APPORTIONMENT - 

CONSOLIDATED RETURN 

The net income computed on a 
consolidated rotui'U of a 
corporate shareholder and a FSC 
shall be apportioned to this 
state by use of the applicable 
apportionment formula set out in 
G.S. 105-130.4. Such 

apportionment formula shall 
include the property, payrolls 
and sales of the corporations 
making the consolidated return. 

History Note: Statutory 
Authority G.S. 105-130.3; 
105-130.4; 105-130.6; 
105-130.7; 105-130.15; 
105-130.16; 105-262; 
Eff. August 1, 1986. 

SUBCHAPTER 6B - INDIVIDUAL 
INCOME TAX 

SECTION .0100 - FILING 



INDIVIDUAL INCOME 
TAX RETURNS 

.0104 ITEMS REQUIRING 
SPECIAL ATTENTION 

( 1 ) The Form D-400 for 

the proper year sliould be 
used. Note: A 1985 form for 
a ta.xpayer vjhosc calendar 
year ends December 31, 1985 
and a 1 984 form for a fiscal 
year taxpayer whose fiscal 
year begins in 1984 should be 
used . 

History Note: Statutory 
Authority G.S. 28A-15-8; 
105-151; 105-152; 105-154; 
105-155; 105-163. 5(e); 
105-163.7; 105-163.10; 
105-251; 105-252; 105-262; 
Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; March 22, 1981; 
February 4, 1978. 

SECTION .0300 - PERSONAL 
EXEMPTION 

.0303 TWO THOUSAND DOLLAR 
PERSONAL EXEMPTION 

When a married individual 
dies before tlie major portion of 
the year has passed and he or 
she has the larger adjusted 
cross income of the married 
couple, he or she is entitled to 
the two thousand dollar ($2,000) 
married person's exemption and 
the other spouse may be entitled 
to tlie two thousand dollar 
($2,000) head of household 
exemption provided tlie other 
spouse maintained a household 
for 183 days or more during the 
year after his or her spouse 
died. If tlie surviving spouse 
who qualified as the head of 
household for the major portion 
of the year has the larger 
adjusted gross income, that 
spouse is entitled only to the 
two thousand dollar ($2,000) 
married person's exemption and 
if lie or she by agreement with 
the deceased spouse's 
representative allows the 
deceased spouse to claim the two 
thousand dollar ($2,000) married 
person's exemption, then the 
surviving spouse is entitled to 
only a one thousand dollar 
($1,000) personal exemption and 
is not entitled to the two 
thousand dollar ($2,000) head of 
household exemption. 

History Note: Statutory 
Authority G.S. 1 05- 1 49 ( a ) ( 2 ) ; 
105-149(a)(4); 1 05-1 49 ( a ) ( 7 ) ; 
105-149(a)(2a) ; 105-135; 
105-262; 

Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 



NORTH CAROLINA REGISTER 



351 



May 1 , 1984; June 1 , 
April 19, 1981 . 



1982; 



.0316 CYSTIC FIBROSIS 

An additional one thousand 
dollar ($1,000) cxenption may be 
claimed for the taxpayer or the 
taxpayer's dependent who has 
cystic fibrosis. To qualify for 
the exemption, eligible 
individuals :nust submit with 
their income tax return a 
certificate from the Division of 
Health Services of tlie N'ortli 
Carolina Department of human 
Resources. This exemption may 
be claimed for a qualified 
spouse who meets tl'.e 
requirements for a dependent 
even though a dependency 
exemption may not be claimed. 

History Note: Statutory 
Authority G.S. 1 05-1 49 ( a ) ( 8e ) ; 
105-262; 
Eff. August 1, 1986. 

.0317 SPINA BIFIDA 
An additional one thousand 
dollar ($1,000) exemption may be 
claimed for the taxpayer or the 
taxpayer's dependent who has 
spina bifida, an open neural 
tube defect. To qualify for the 
exemption, eligible individuals 
must submit with their income 
tax return a certificate from 
the Division of Health Services 
of the North Carolina Department 
of Human Resources . Tliis 
exemption may be claimed for a 
qualified spouse who meets the 
requirements for a dependent 
even though a dependency 
exemption may not be claimed. 

History Note: Statutory 
Authority G.S. 1 05-1 49 (a ) ( 8f ) ; 
105-262; 
Eff. August 1 , 1986. 

.0318 MULTIPLE SCLEROSIS 
An additional one thousand 
dollar ($1,000) exemption may be 
claimed for the taxpayer or the 
ta.xpayer's dependent who has 
multiple sclerosis. To qualify 
for the exemption, eligible 
individuals must submit with 
their income tax return a 
supporting statement from a 
physician or county health 
department. This exemption may 
be claimed for a qualified 
spouse who meets the 
requirements for a dependent 
even though a dependency 
exemption may not be claimed. 

History Note: Statutory 
Authority G.S. 1 05- 1 49 ( a ) ( 8g ) ; 
105-262; 
Eff. August 1 , 1986. 



.0319 SEVERE HEAD INJURY 
An additional one thousand 
dollar ($1,000) exemption may be 
claimed for the taxpayer's 
dependent who is in either (1) a 
vegetative state or (2) a 
severely disabled condition as 
assessed by the Glasgow Outcome 
Scale. To qualify for the 
exemption, a supporting 
statement from a physician must 
be attached to the income tax 
return verifying that the 
dependent has one of these 
conditions. This exemption may 
be claimed for a qualified 
spouse who meets the 
requirements for a dependent 
oven though a dependency 
e.xemption may not be claimed. 

History Note. Statutory 
Authority G.S. 1 05-1 49 ( a) (8h ) ; 
105-262; 
Eff. August 1, 1986. 

SECTION .0500 - DIVORCED OR 
SEPARATED PERSONS 

.0501 GENERAL 

(a) Under G.S. 105-141 .2 
alimony and separate maintenance 
payments are includable in the 
gross income of the recipient 
for North Carolina income tax 
purposes to the same extent that 
such payments are includable in 
gross income for federal income 
tax purposes. The spouse making 
such payments may claim a 
miscellaneous deduction under 
G.S. 105-147(21) for the amount 
includable in the gross income 
of the spouse receiving such 
payments . 

(b) In administering these 
sections of the North Carolina 
law, the Department of Revenue 
follows federal rules and 
regulations which are not 
contrary to the context and 
intent of North Carolina law. 

(c) When a husband and wife 
are divorced, legally separated, 
or voluntarily separated without 
court intervention, the tax 
consequences for income tax 
purposes must be determined witli 
respect to the reporting and 
deducting of alimony and 
separate maintenance payments, 
property settlements, legal 
fees, and personal exemption. 

(d) These provisions of the 
statute are deemed for North 
Carolina income ta.x purposes to 
apply not only to those 
individuals legally divorced as 
the result of court proceedings, 
but also to those individuals 
separated with the intent to 
remain separate and apart 
( estranged) . 



352 



NORTH CAROLINA REGISTER 



History Note: Statutory 
Authority G . S . 105-141.2; 
105-147(21); 105-262; 
Eff . February 1 , 1976; 
Amended Eff. August 1, 1986; 
March 22, 1981 . 

.0502 INCOME (REPEALED) 



History Note: 
Authority G.S 
105-262; 
Eff. February 
Repealed Eff. 



Statutory 
105-141 .2; 



1, 1976; 
August 1 



1986. 



,0503 DEDUCTIONS (REPEALED) 



Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0510 TRANSFER OF 

APPRECIATED PROPERTY 
(REPEALED) 

History Note: Statutory 
Authority G.S. 105-141 .2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0511 RETROACTIVE EFFECT 
OF A DECREE (REPEALED) 



History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0504 NONDEDUCTIBLE 

PAYMENTS (REPEALED) 



History Note : Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 



.0512 



EFFECT OF LOCAL 
LAW (REPEALED) 



History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0505 MINOR CHILDREN 
(REPEALED) 



History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0513 PAYMENTS FROM A 
TRUST (REPEALED) 



History Note: Statutory 
Authority G.S. 105-141 .2; 
105-147(21); 105-262; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1982; 
Repealed Eff. August 1, 1986. 

.0505 PERIODIC PAYMENTS 
(REPEALED) 

History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0507 LUMP-SUM SETTLEMENT 
(REPEALED) 



History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 



.0. 



i14 MEDICAL EXPENSES 
(REPEALED) 



History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(11); 105-147(21); 
105-262; 

Eff. February 1, 1976; 
Repealed Eff. August 1, 1936. 

.0515 LIFE INSURANCE 

PREMIUMS (REPEALED) 



History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1, 1976; 
Repealed Eff. August 1, 1986. 

.0508 LARGE EARLY PAYMENTS 
(REPEALED) 

History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1, 1976; 
Repealed Eff. August 1, 1986. 

.0509 SETTLEMENT OF 

PROPERTY RIGHTS (REPEALED) 

History Note; Statutory 



History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0516 TAXES : INTEREST : 
INSURANCE: UTILITIES (REPEALED) 

History Note: Statutory 
Authority G.S. 105-141.2; 
105-141 (a)(3); 105-144; 
105-147(5); 105-147(6); 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Amended Eff. March 22, 1981; 
Repealed Eff. August 1, 1986. 

.0517 BACK ALIMONY PAYMENTS 



NORTH CAROLINA REGISTER 



353 



(REPEALED) 

History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21 ) ; 105-262; 
Eff . February 1 , 1976; 
Repealed Eff. August 1, 1986. 

.0518 PAYMENT AFTER WIFE'S 
DEATH OR REMARRIAGE (REPEALED) 

History Note: Statutory 
Authority G.S. 105-141.2; 
105-147(21); 105-262; 
Eff. February 1 , 1976; 
Amended Eff. May 1 , 1984; 
Repealed Eff. August 1, 1986. 

.0519 LEGAL EXPENSES 
(REPEALED) 



History Note 
Authority G 
105-147(2); 
105-262; 
Eff. February 
Repealed Eff. 



Statutory 
S. 105-141. 
105-147(21 ); 

1, 1976; 
August 1 , 



2; 



1986, 



.0520 PERSONAL EXEMPTION 
(REPEALED) 



Statutory 
.S. 105-141 .2; 
105-149; 



History Note: 
Authority G . 
105-147(21 ) 
105-262; 

Eff. February 1 , 1976; 
Amended Eff. Juno 1, 1982; 
March 22, 1981 ; 
February 1 1 ■ 1978; 
Repealed Eff. August 1, 1986. 

SECTION .0600 - OUT-OF-STATE 
INCOME .AND TAX CREDITS 

.0602 RESIDENTS 

(d) An individual moving into 
this state during the income 
year must report his income 
earned or received from all 
sources after he becomes a 
resident of North Carolina, and 
he will be allovjcd a personal 
exemption in the proportion that 
his income reportable to this 
state bears to the total income 
earned both v;ithin and without 
this state. For the purpose of 
prorating personal exemption, 
the follo'rfing formula vjould be 
used : 

Adj. gross income in N.C. 
Total adj . gross income 

Personal e.xonption = 
allovjable exemption 
An individual moving out of 
Nortli Carolina must report 
income from all sources vihile a 
resident of this state, and 
after becoming a resident of the 
other state or country he will 
report to North Carolina only 
such income as he may receive 
from sources in tliis state. His 



personal exemption must be 
prorated by use of the same 
formula described in this Rule 
for the taxpayer moving into 
this state. If tlie individual 
reports income from all sources 
for the entire year to North 
Carolina and claims no deduction 
for income earned outside North 
Carolina, he may claim the full 
personal e.xomption. Individuals 
moving into or out of North 
Carolina may claim only those 
business deductions incurred in 
connection with earning the 
North Carolina income and only 
those itemized nonbusiness 
deductions (contributions, 
medical, etc.) actually paid 
vjhile residents of North 
Carolina. If these individuals 
elect to claim a standard 
deduction in lieu of itemized 
deductions, the allowable amount 
is determined by multiplying by 
10 percent of the total adjusted 
gross income in all states or 
five hundred and fifty dollars 
($550.00), whichever is less, by 
the proration percentage used 
for prorating the personal 
exemption . 



History Note 
Authoritv G 
105-141 (a); 
105-1 49(b); 
105-262; 

Eff. February 1, 1976 
Amended Eff. August 1 
Mav 1 , 1984; June 1 , 
December 17, 1978. 



Statutory 
S. 105-135(13); 
105-147(9); 
105-151 ; 



, 1986; 

1982; 



.0603 NONRESIDENTS 

(b) A nonresident individual 
is required to report to North 
Carolina all income derived from 
sources witliin this state. No 
tax credit is allowed by North 
Carolina to a nonresident. 

A nonresident may claim a 
deduction on his North Carolina 
income ta.x return for business 
e.xpenses paid in connection with 
the earning of income in North 
Carolina. Also, a nonresident 
may claim itemized nonbusiness 
deductions or the standard 
deduction on the basis that his 
North Carolina adjusted gross 
income relates to his total 
adjusted gross income, provided 
the nonresident's state of 
residence allows similar 
apport ioiiment to North Carolina 
residents. Residents of states 
not having an income ta.x will be 
allowed itemized nonbusiness 
deductions on their North 
Carolina income tax return. 
From information available, 
residents of the other 49 states 
and the District of Columbia 
v/ould be allowed apportioned 



354 



NORTH CAROLINA REGISTER 



nonbusiness deductions or the 
standard deduction when filing a 
North Carolina tax return. 

G.S. 105-142(c) provides 
that if an established business 
in North Carolina is owned by a 
nonresident individual or by a 
partnership having one or more 
nonresident members and if the 
business is operating in one or 
more other states, tlie net 
income of the business 
attributable to North Carolina 
for the purpose of computing the 
Nortli Carolina income tax 
liability of the nonresident 
individual or nonresident 
partner must be determined by 
multiplying the total net income 
of the business by the 
allocation ratio ascertained 
under the provisions of G.S. 
105-130.4. (This allocation of 
income does not effect the 
reporting of income by the 
resident individual or resident 
partner because he is taxable on 
his share of the net income of 
the business whether or not any 
portion of it is attributable to 
another state or country.) 

History Note: Statutory 
Authority G.S. 105-130.4; 
105-134; 105-135(13); 
105-142(c); 105-147(18); 
105-151; 105-262; 
Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; June 1, 1982. 

SECTION .0700 - ACTIVE AND 
RESERVE DUTY MILITARY PAY 

.0704 ESTIMATED INCOME TAX 
RETURNS 

A serviceperson or 
serviceperson' s spouse files an 
estimated income ta.x where the 
net estimated ta.x is forty 
dollars ($40.00) or more. 

History Note: Statutory 
Authority G.S. 105-163.15; 
105-163.18; 105-262; 
Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
February 1 1 , 1978. 

SECTION .0900 - SALE OF 

PRINCIPAL RESIDENCE 

.0902 RULES 

(c) The new residence must 
be used as the individual's 
principal residence within two 
years before or after the sale 
of the old residence. 

The replacement period is 
suspended during any time that 
the taxpayer (or his spouse if 
the old residence and the new 
residence are each used by the 
taxpayer and his spouse as their 



residence) serves on extended 
active duty with the Armed 
Forces of the United States 
after the date of sale of the 
old residence. In no case, 
however, may the period be 
suspended longer than four years 
after the date of the sale of 
the old residence. The 
replacement period if suspended 
for up to eight years for 
members of the Armed Forces 
stationed outside the United 
States or for members required 
to reside in government quarters 
at a remote site. This eight 
year suspension applies to those 
residences sold after July 18, 
1984. 

The replacement period 
for purchasing a new principal 
residence to postpone the tax on 
the gain from the sale of a 
principal residence is suspended 
up to four years after the date 
of sale during the time an 
individual has his tax home 
outside of the United States. 

An individual will be allowed 
to postpone the taxing of gain 
on tlie sale of more than one 
principal residence within the 
replacement period if the 
proceeds are reinvested in a new 
principal residence and he 
relocates for employment 
purposes and qualifies to deduct 
moving expenses. 

History Note: Statutory 
Authority G.S. 105-144.2; 
105-262; 

Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; March 29, 1981; 
February 1 1 , 1978. 

SECTION .1400 - INCOME AND 
DEDUCTIONS OF DECEDENTS 

.1402 THE REPORTING OF 
INCOME 

(a) The income of the decedent 
is determined in the same v;ay it 
vjould have been determined had 
he lived. If he was on a cash 
basis, only that income actually 
or constructively received up to 
and including the date of his 
death is to be included in his 
final return. Income may be 
considered to be constructively 
received by a cash basis 
taxpayer when it is credited to 
iiim viithout restriction and made 
available to him to the extent 
tliat he can draw upon it an 
bring it immediately into his 
possession and control. If the 
decedent was on the accrual 
basis, there should be included 
on tl^e final return filed for 
him his income accrued up to and 
including the date of death; 



NORTH CAROLINA REGISTER 



355 



hov;ever, any income accruable 
only because of his death should 
not be included on his final 
return . 

History Note: Statutory 
Authority G.S. 105-142; 
105-142. 1 ; 105-262; 
Eff . February 1 , 1976; 
Amended Eff. August 1, 1986; 
June 1, 1982. 

SECTION .1700 - EXEMPT INCOME 

.1706 GOVERNMENT OBLIGATIONS 
(b) Even though interest on 
these obligations is exempt, any 
gain realized on the sale or 
redemption of them is taxable 
except in cases where the 
exemption of gain is specified 
by a particular lav; which 
authorized their issuance. 
Interest on bonds, notes, or 
other obligations of states 
other than North Carolina, or 
political subdivisions of such 
states, or of countries otlier 
than the United States and its 
possessions is ta.xable income to 
a North Carolina resident. 

History Note: Statutory 
Authority G.S. 105-141(a); 
105-141 (b)(4); 105-262; 
Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
June 1, 1982; February 18, 1978. 

.1748 NORTH CAROLINA 

RETIREMENT BENEFITS 

(a) Legislative retirement 
benefits received by retired 
members of the General Assembly, 
from the Legislative Retirement 
Fund, are taxable under the 
annuity rules set forth in G.S. 
105-141.1. The amendment to the 
lav; v;hich established the 
Legislative Retirement Fund 
incorporates certain provisions 
of Chapter 135 of the General 
Statutes but does not 
incorporate the provision 
relating to exemption from 
taxation . 

History Note: Statutory 
Authority G.S. 120-4.4; 
120-4.23; 105-262: 
Eff. May 1 , 1984; 
Amended Eff. August 1, 1986. 

.1749 PUNITIVE DAMAGES 
Amounts which represent 
payment for punitive damages are 
ta.xable; however, amounts 
received as damages (whether by 
suit or agreement) on account of 
injuries or sickness are exempt 
(examples: black and brov;n lung 
benefits ) . 

History Note : Statutory 



Authority G . S . 1 05-1 41 (b )5 ; 

105-262; 

Eff. August 1 , 1986. 

.1750 FOSTER PARENTS 
REIMBURSEMENT 

Payments to a foster parent 
by a child-placing agency are 
not taxable income provided the 
payments received do not exceed 
the expenses incurred for taking 
care of the child in your home. 

History Note: Statutory 
Authority G.S. 105-141(a); 
105-262; 
Eff. August 1, 1986. 

.1751 CHILD AND DEPENDENT 
ASSISTANCE PAID BY 
EMPLOYER 

Effective for income tax 
years beginning on or after 
January 1, 1983, amounts paid or 
incurred by an employer for 
child and dependent care 
assistance are excluded from the 
gross income of the employee to 
the extent excluded from gross 
income for federal income tax 
purposes. Amounts excluded by 
an employee as child and 
dependent care assistance 
payments may not qualify for any 
other type of income tax 
deduction or tax credit. 

History Note: Statutory 
Authority G.S. 1 05- 1 41 (b ) (9 )c . ; 
105-262; 
Eff. August 1, 1986. 

.1752 FOREIGN INCOME 
EXCLUSION 

Income earned outside the 
United States is subject to a 
foreign income exclusion to the 
same extent allowable for 
federal income tax purposes. 
Federal Form 2555, Foreign 
Earned Income, should be 
attached to the state tax return 
when this e.xclusion is claimed. 

North Carolina law does 
not exempt any income from 
taxation because of a tax treaty 
between the United States and 
another country. 

History Note: Statutory 
Authority G.S. 1 05-1 4 1 (b ) (22 ) ; 
105-262; 
Eff. August 1 , 1986. 



SECTION 



.1900 - EMPLOYEE 
DEATH BENEFITS 



.1902 THE FIVE THOUSAND 
DOLLAR EXCLUSION 
(5) The exclusion applies, 
even though the employee had 
a nonforfeitable right to 
the proceeds had he lived, 
v;here the total distribution 



356 



NORTH CAROLINA REGISTER 



payable under a pension, 
profit sharing, stock bonus, 
or annuity trust or plan 
which qualifies under the 
provisions of G.S. 
105-161 (f)(na. is paid 
within one taxable year of 
the beneficiary. The total 
distribution payable means 
the balance to the credit of 
an employee which becomes 
payable to the beneficiary 
on account of the employee's 
death, either before or 
after separation from the 
service of the employer. 
Effective for income tax 
years beginning on or after 
January 1, 1985, the five 
thousand dollar ($5,000) 
death benefit exclusion is 
also available to 
beneficiaries and estates of 
self-employed individuals on 
amounts distributed under 
these trusts and plans. 

History Note: Statutory 
Authority G.S. 105-141(b) 
(11); 105-141.1; 105-262; 
Eff . February 1 , 1976; 
Amended Eff. August 1, 1986; 
February 18, 1978. 

SECTION .2500 - RETIREMENT 
PLANS 

.2502 FEDERAL PRACTICE TO 
BE FOLLOWED 

(b) Contributions by employees 
to a qualified employees' 
retirement plan are generally 
not deductible; however, 
voluntary contributions to 
qualified plans described in 
Internal Revenue Code Section 
401 (k) are excludable to the 
same extent allowable for 
federal income ta.x purposes. 

(c) Amounts actually 
distributed from a qualified 
employees' retirement plan 
including a self-employed plan 
is ta.xable in the year 
distributed. If the employee 
has made contributions to the 
plan and the benefits are 
received as a lump sum, the 
recipient will be taxed on the 
amount distributed to the extent 
such amount e.xceeds the 
contributions. If tlie employee 
has made contributions and the 
benefits are received as 
periodic payments, the amounts 
annually received will be ta.xed 
under the annuity rules. When 
distributions are received from 
such qualified plans by an 
individual after moving to North 
Carolina and becoming a 
resident, the amount received is 
ta,xable; however, distributions 
received by an individual after 



having moved out of North 
Carolina and becoming a 
r.onresident is not taxable. 

History Note : Statutory 
Authority G.S. 105-147(20); 
105-262; 

Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; June 1, 1982. 



SECTION 



.2600 - CARRY-OVER 
LOSS 



.2604 APPORTIONMENT 

V.'hen an individual is 
required to apportion to North 
Carolina his net apportionable 
income, as defined by statute, 
only such proportionate part of 
the net economic loss of a prior 
year may be claimed as a 
deduction as v-jould be determined 
by the use of the apportionment 
ratio computed under the 
corporate apportionment 

provisions in effect for the 
year in which the loss occurred. 

An individual who has 
sustained a net economic loss in 
anotlier state prior to moving to 
North Carolina cannot claim a 
deduction for a carry-over loss 
resulting from such net economic 
loss . 

If a nonresident or 
part-year resident with income 
reportable to North Carolina and 
also with income not ta.xable to 
North Carolina has a loss on the 
North Carolina income, he must 
reduce the loss by the income 
not taxable to North Carolina 
under this division before he 
may carry the loss over to the 
ensuing year. 

History Note: Statutory 
Authority G.S. 1 05-1 47(9 )d . ; 
105-262; 

Eff. February 1, 1976; 
Amended Eff. August 1, 1986. 

SECTION .2800 - TAXES PAID 

.2805 DEDUCTIBLE BY 
RESIDENTS 
(2) Intangibles Tax; 

History Note: Statutory 
Authority G.S. 105-147(6); 
105-262; 

Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
April 5, 1981; March 11, 1978. 

.2806 NONDEDUCTIBLE 

(13) taxes paid for another 
individual ; 

(14) import (customs) duties. 

History Note: Statutory 
Authority G.S. 105-147(6); 
105-262; 



NORTH CAROLINA REGISTER 



357 



Eff . February 1 , 1976; 
Amended Eff. August 1, 
March 11, 1978. 



1986; 



SECTION .3000 - CONTRIBUTIONS 

.3005 LIMITATIONS 
(b) A deduction is also 
allowed witliout limit for 
contributions to 

public-supported community 
foundations or public-supported 
community trusts which are 
deemed to be publicly supported 
for purposes of the Internal 
Revenue Code and the federal 
regulations. and for a 
contribution an individual 
designates on his ta.x return 
which is to be used by tlie North 
Carolina Nongame and Endangered 
Wildlife Fund. (For more 
information on the North 
Carolina Nongame and Endangered 
Wildlife Fund see Other Items, 
17 NCAC 6B .3303. ) 

History Note: Statutory 
Authority 105-147(15); 
105-147(15a) ; 105-147(16); 
105-163. 16(e) ; 105-262; 
Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; February 21, 1979; 
March 11, 1978. 

.3006 AMOUNT DEDUCTIBLE 
(b) If a contribution is 
made in property, the fair 
market value of the property at 
the time the property is donated 
is the measure of the 
contribution. The fair market 
value of property generally 
represents the amount which an 
ov;ner, vjho is not under 
necessity of selling, is willing 
to take and which another 
individual , who is not under a 
necessity of buying, is v;illing 
to pay. If the value of the 
property is more or less than 
its basis, no gain or loss is 
recognized because the 
contribution made in property is 
not generally considered as a 
taxable exchange. Where 
appraisals, schedules, etc. are 
required to be attached to an 
individual's federal income tax 
return, the same information 
would also be required to be 
attached to tlie individual's 
state tax return. 

History Note : Statutory 
Authority G.S. 105-147(15); 
105-147(16); 105-262; 
Eff. February 1 . 1976; 
Amended Eff. August 1, 1986; 
April 5, 1931 . 



SECTION .3400 



STATUTE OF 



LIMITATIONS AND FEDERAL 
CHANGES 

.3406 REFUNDS 

(d) For refunds barred by the 
three-year statute of 
limitations, G.S. 105-267.1 
provides for the refunding of 
taxes v;hich through clerical 
error, or misinterpretation of 
the law, or otherwise have been 
paid in excess of the amount 
legally due; provided, the 
demand for such refund is made 
within tv.'0 years from the time 
of the payment. This tijo-year 
statute of limitations does not 
apply in cases where the tax is 
due and payable to another 
state . Any refund made under 
this statute must be certified 
by the Director of the 
Individual Income Tax Division, 
approved by the Attorney 
General, and will not include 
any interest . 

History Note: Statutory 
Authority G.S. 105-163.16; 
105-241.1; 105-262; 
105-266; 

Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; December 17, 1978. 

SECTION .3700 - ESTATES AND 
TRUSTS 

.3709 ORDINARY DEDUCTIONS 
(a) An estate or trust may 
deduct ordinary and necessary 
expenses incurred in carrying on 
a trade or business, expenses 
paid during the year for 
production or collection of 
income, expenses paid during the 
year for the management , 
conservation, or maintenance of 
property held for the production 
of income, and expenses paid in 
connection with the 
determination, collection, or 
refund of any tax. Reasonable 
amounts paid or incurred by the 
fiduciary of an estate or trust 
as administration e.xpenses are 
deductible to the extent that 
they are not allocable to tax 
exempt income . 

History Note: Statutory 
Authority G.S. 105-161(d); 
105-142. 1 (e) ; 105-262; 
Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
June 1, 1982. 

SECTION .3800 - MISCELLANEOUS 
RULES 

.3801 INCOME 

(e) A dividend or a portion 

of a dividend which is in fact a 
return of capital will be 



358 



NORTH CAROLINA REGISTER 



treated as a reduction in the 
basis of the stock on which the 
dividend was declared and not ns 
taxable income. 

(g) Embezzlcncnt proceeds are 
reportable as income regardless 
of ivhethcr or not the 
embezzlement was condoned by the 
victim. Also, kickbaclcs, side 
commissions, push money, or 
similar payments ai-e reportable 
as income . 

(p) Strike benefits based 
solely on need are considered 
gifts and are not taxable; 
however, strike benefits paid 
for other reasons are fully 
ta.xable to recipients regardless 
of v/hether or not picket duty is 
required . 

(q) Unemployment compensation 
benefits received by a resident 
of North Carolina are ta.xable to 
this State, even, if the 
benefits were received because 
of working in another state . 
Benefits received by a 
non-resident in North Carolina 
are not ta.xable to this State, 
even if received because of 
working in North Carolina. 
Trade re-adjustment allowances 
(TRA) , airline deregulation 
benefits, and disaster 
unemployment assistance are 
considered unemployment 

compensation benefits and are 
taxable . 

(u) Fees received for services 
as a witness, a member of a jury 
or an election precinct official 
are reportable as income . 

(w) An individual landowner 
who owns one thousand acres or 
less of private forestland or 
owns forestland that has been 
approved by the U.S. Secretary 
of Agriculture for cost-sharing 
under Section 4(c) of the 
Federal Cooperative Forestry 
Assistance Act of 1978, may 
elect to report one-third of 
income from the sale of timber 
products for the forestland in 
the year of sale and one-third 
in each of the next two 
succeeding years . Once an 
election is made, the iridividual 
may not change from one 
reporting method to another 
after the due date of the tax 
return . 

When an individual dies after 
having made an election to 
report the gain over the 
three-year period, the balance 
of the gain may be reported on 
the individual's final income 
tax return or an election may be 
made to continue to report the 
gain as originally elected; 
however, no personal e.xemption, 
itemized deductions or standard 
deduction v-^ould be allowed on 



returns filed for years after 
the year in which the taxpayer 
c'ios. In tlic case of the 
taxpayer who dies after selling 
the timber but before making tlie 
election to report tlie timber 
sale over tlie tliree-year period, 
the administrator/e.xecutor of 
tlio individual's estate may make 
the election for the deceased 
individual, subject to the 
provisions stated in this Rule. 

History Note: Statutory 
Authority G.S. 105-141(a); 
105-141 . 1 ; 105-144(c); 
105-147(7); 105-262; 
Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; June 1, 1982; 
April 12, 1981 . 

.3802 DEDUCTIONS 

(u) Effective for income tax 
years beginning on and after 
January 1, 1985, a deduction may 
be claimed for tlie marketing 
assessment fee paid on tobacco 
grov;n in North Carolina. The 
deduction should be entered on 
the Farm Schedule, or where 
applicable the fee may be shown 
2s a deduction in Part II of 
Schedule B, Supplemental 
Schedule of Income. 

(v) Effective for income ta,x 
years beginning on and after 
January 1, 1985, a deduction is 
alloived of up to three thousand 
dollars ($3,000) for payments 
made for the maintenance and 
care of one or both of an 
individual's parent (s). The 
deduction must be reduced by the 
total of all gifts received from 
the parent (s) during the tax 
year which e.xceed one hundred 
dollars ($100.00). If payments 
are made for one parent, the 
deduction may be claimed only 
if: 

( 1 ) the parent was age 65 

or over by the last day of 
the income year; 

(2) the parent's total 
disposable income from all 
sources other than gifts or 
inlieritances did not exceed 
nine thousand dollars 
(09,000) for the year; 

(3) the parent i.as a North 
Carolina resident for more 
than half the year (183 days 
or more ) ; 

(4) the parent is not claimed 
as a dependent on the 
individual's State income 
tax return; and 

(5) the parent v/as not in a 
public or private 
institution for more than 
lialf the year (183 days or 
more ) . 

If payments are made for both 



NORTH CAROLINA REGISTER 



359 



parents, the deduction may be 

claimed on if: 

( 1 ) at least one parent was 
age 65 or over by the last 
day of the income year; 

(2) the parents' combined 
disposable income from all 
sources other than gifts or 
inheritances did not exceed 
nine thousand dollars 
($9,000) for the year; 

(3) both parents were 

North Carolina residents for 
more than half the year (183 
days or more ) ; 

(4) the parent is not 
claimed as a dependent on 
the individual's State 
income tax return; and 

(5) neither parent was in 

a public or private 
institution for more than 
half the year (183 days or 
more ) . 

If an individual makes payments 
to one parent and both parents 
benefited from the payments, 
they are considered to have been 
made for both parents. 

Disposable income is defined 
as total income from all 
sources, except gifts or 
inheritances received from a 
spouse, lineal ancestor, or 
lineal descendant. Disposable 
income includes all nontaxable 
income such as social security, 
child support, welfare payments, 
etc . 

A public or private institution 
includes, but is not limited, to 
a hospital, nursing home, rest 
home, retirement home, etc. 

Qualifying maintenance and 
care payments are those actual 
monetary payments actually 
incurred for the parent's care. 
The qualifying expenses will 
generally include those items 
normally considered in 
determining the support of a 
dependent . Support includes 
expenditures used for providing 
food, clothing, education, 
medical and dental care, 
recreation, transportation, and 
similar necessities. 

Maintenance and care payments 
for support items can be made 
either directly to the parent(s) 
or directly for the parent's 
benefit. For example, payments 
made by an individual to a 
doctor for a parent's benefit 
would qualify as made for the 
maintenance and care of the 
parent . VJhen an individual owns 
a home in which the parcnt(s) 
reside, no deduction is 
allowable for any portion of the 
house payments or for the fair 
rental value of the parents' 
lodging. In this case. the 
individual has not actually paid 



any amount for the maintenance 
of the parent (s) and the house 
payments are his or her 
investment in the property. If 
an individual pays the rent on a 
home in which the parent (s) 
reside or pays the house 
payments on a home in which the 
parent(s) reside and own, a 
deduction is allowable for the 
portion of the rent or house 
payments paid for the parent ( s ) . 
If a ta.xpayer resides rent free 
(or for less than fair value) in 
a home owned by the parent (s) 
(or on which the parents pay the 
rent ) , the maintenance and care 
payments the taxpayer makes for 
tlie parent ( s ) must be reduced by 
the amount which the fair rental 
value of the taxpayer's lodging 
exceeds the rent the taxpayer 
pays. 

In the case of married 
individuals. each spouse may 
claim a deduction only for those 
qualifying payments he or she 
made for his or her own parents. 
One spouse may not deduct 
payments lie or she made for the 
maintenance and care of the 
other spouse's parents, nor may 
a deduction be claimed by the 
other spouse for these payments 
since the other spouse did not 
make the payments. 

In determining the amount 
of qualifying maintenance and 
care payments made by each 
spouse from a joint checking 
account, each spouse will be 
considered to have made the 
payments for his or her own 
parent (s). If both spouses made 
payments to his or her 
parent (s), each spouse must file 
a separate Form D-470 and each 
spouse may be entitled to claim 
a deduction of up to three 
thousand dollars ($3,000) for 
the amount he or she paid for 
his or her own parents. 

History Note: Statutory 
Authority G.S. 105-147(1); 
105-147(2); 105-147(7); 
105-147(9)a;105-147(10); 
105-147(24); 105-147(28); 
105-148(1); 105-148(2); 
105-148(8); 105-262; 
Eff . February 1 , 1976; 
Amended Eff. August 1, 1986; 
June 1, 1982; April 12, 1981; 
January 21 , 1979. 

.3803 OTHER ITEMS 

(k) Effective for income tax 
years beginning on or after 
January 1, 1983. an individual 
may elect to contribute all or 
any portion of his income tax 
refund, at least one dollar 
(01 .00) or more, to the North 
Carolina Nongame and Endangered 



360 



NORTH CAROLINA REGISTER 



Wildlife Fund. Once the 
election is made to contribute, 
the election cannot be revoked 
after the return has been filed. 

The amount contributed may 
be claimed as a contribution on 
the following year's income tax 
return provided the individual 
itemizes his non-business 
deductions . 

The contribution will be used 
to assist in the management and 
protection of North Carolina's 
many nongame species, including 
endangered wildlife. The 
Nongame and Endangered Wildlife 
Fund will be the primary source 
of money to support much needed 
research, public education, and 
management programs designated 
specifically to benefit nongame 
wildlife . 

(n) Individuals who receive 
tax e.xempt income relating to an 
otherwise allowable business or 
non-business deduction may not 
deduct any amounts allocable to 
tax exempt income. Federal 
rules and regulations in effect 
during the income year v;ill be 
followed in determining the 
extent to which a deduction is 
allocable to tax-exempt income 
which are not deemed to be 
contrary to the context and 
intent of state law. 

(o) A loss arising from an 
activity entered into without 
the expectation of profit is not 
deductible (example, hobby 
losses and losses on vacation 
homes). If the profit motive is 
factually established, the 
amount of loss that may be 
deducted is limited to the 
amount actually sustained during 
the income year; thus, the loss 
cannot exceed the amount of 
capital or property the ta.xpayer 
has at risk in tlie activity. In 
determining the profit motive 
and the amount tlie ta.xpayer has 
a risk, the department follov.'s 
the Federal practice to tlio 
extent it is not contrary to the 
context and intent of state law. 

(p) An individual may elect 
to have his or her income ta.x 
refund applied to estimated 
income tax for the follov;ing 
year. For example, and 
individual due a refund on his 
1985 income ta.x return may have 
all or any portion of the refund 
applied to his estimated tax for 
1986. The individual may not 
hov;over, file a 1985 return in 
1987 and request the refund be 
applied to his 1987 estimated 
tax since the refund can only be 
applied to the ta.x year which 
follows the year for v;hich the 
request for refund is made. 

(q) Cancelled chcclcs , receipts. 



or other evidence to 
substantiate deductions on the 
tax return should be kept for a 
period of at least three years 
from the due date of the return 
or three years from the date the 
return is filed, whichever is 
later. Lack of adequate records 
could result in the disallowance 
of all or part of the deductions 
claimed . 

A cancelled check, money 
order stub, or Departmental 
rc^ceipt showing payment of tax 
should be kept for at least five 
years from the due date of the 
ta.x return. 

History Note: Statutory 
Authority G.S. 8-45.3; 
105-142(a); 105-144(a); 
105-144.3; 105-147(1)h; 
105-147(9)a; 105-147(17); 
105-147(19); 105-148(1); 
105-159.1; 105-163. 16(c); 
105-163. 16(e) ; 105-251; 
105-262; 147-77; 
Eff . February 1 , 1976; 
Amended Eff. August 1, 1986; 
May 1 ■ 1984; June 1 , 1982; 
January 21 , 1979 . 

SUBCHAPTER 6C - WITHHOLDING 

SECTION .0100 - WITHHOLDING 
INCOME TAXES 

.0109 MINISTERS 

An ordained or licensed 
clergyman who performs services 
for a church of any religious 
denomination may file an 
election with the Secretary of 
Revenue and tlie church he serves 
to be considered self-employed 
instead of an employee of the 
church. VJages paid by a church 
to a clergyman wlio elects to be 
considered self-employed are not 
subject to withholding. 

History Note: Statutory 
Authority G.S. 105-163. 1A; 
105-163.2; 105-163.18; 
105-262; 

Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
February 21 , 1979. 

SUBCHAPTER 6D - ESTIMATED TAX 

SECTION .0100 - FILING ESTIMATED 
INCOME TAX PAYMENTS 

.0101 FORMS 

(a) The form for paying 
estimated individual income tax. 
Form NC-40, is available from 
the Department of Revenue in the 
form of a personalized payment 
book or a non-personalized, 
four-page, tear-off sheet. Both 
types of forms include the 
necessary voucliers and 



NORTH CAROLINA REGISTER 



361 



instructions for making show 

payments. Instructions arc retu 

printed on the back of the form. redu 

(b) For ta.xable years ta.x 

1986 and after, an individual cred 

will no longer bo required to ($40 

file a declaration of the the 

estimated income ta.x as in the indi 

past; however, tlie individual subj 

will be required to make NC-4 

payments of estimated income Inco 

ta.x. This change in State law tlie 

is similar to the change in vjhen 
Federal law. 



n due on the income tax 
rn for tlie taxable year, 
ced by the North Carolina 

withheld and allowable tax 
its, is forty dollars 
.00) or more regardless of 
amount of income the 
vidual has that is not 
ect to withholding. Form 
0, North Carolina Estimated 
me Tax for Individuals, is 

form required to be used 

making payments. 



History Note: Statutory 
Authority G. S. 105-163.15; 
105-254; 

105-262; 105-163.18; 
Eff . February 1 , 1976; 
Amended eff. August 1, 1986. 

.0102 REQUIREMENTS FOR FILING 

(a) For ta.xable years before 
1986, an individual is required 
to file a Declaration of 
Estimated North Carolina Income 
Ta.x, Form NC-40, if he has 
income of one thousand dollars 
($1,000) or more which is not 
subject to North Carolina 
withholding and if he can 
reasonably e.xpect his net North 
Carolina income ta.x to be forty 
dollars ($40.00) or more after 
deducting the amount e.xpected to 
be v;ithheld or allowed as a ta.x 
credit . 

(b) If a husband and wife 
file on a combined declaration. 
Form NC-40, they must also file 
on a combined return. Form 
D-400. 

(c) The forty dollar 
($40.00) minimum is applicable 
to the husband and v;ife 
separately before their 
estimated taxes are combined. 

(d) A ta.xpayer filing a 
short-period return because of 
changing his income year is 
required to make the declaratin 
of estimated income ta.x and 
payments of estimated ta.x on the 
installment dates which fall 
vjithin tlie sliort period and 15 
days after the close of the 
short period which would liave 
been due had he not changed his 
income year. The penalty for 
underpayment of estimated income 
ta.x for a short period will be 
computed for the period of 
underpayment based on tlie ta.x 
sliown due on the short-period 
return and computed in the same 
manner as it would have been 
computed had the taxpayer not 
changed his income year. 

(e) For ta.xable years 
beginning on and after January 
1, 1986, an individual is 
required to malce estimated percent 
income tax payments if the ta.x farmers 



History Note: Statutory 
Authority G.S. 105-163.15; 
105-262; 105-163.18; 
Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
May 1, 1984; February 21, 1979. 

SECTION .0200 - PENALTY 
FOR UNDERPAYMENT 

.0201 GENERAL 

(a) For ta.xable years 
before 1936, there are two types 
of penalties, criminal and 
civil, v.'hich apply to the 
declaration of estimated income 
ta.x. The criminal penalty is 
for willfully filing a false 
return or for willful failure to 
file a declaration return or pay 
the estirnated ta.x. The civil 
penalty is a penalty computed at 
the applicable rate upon the 
amount of the underpayment of 
estimated ta,x for the period of 
the underpayment. 

(b) For ta.xable years 
beginning on and after January 
1, 1986, the only penalty is the 
civil penalty for underpayment 
of estimated income tax. 

History Note: Statutory 
Authority G.S. 105-163.15; 
105-236(9); 105-241.1(1); 
105-262; 105-163.18; 
Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
February 21 , 1979. 

.0205 REQUIREMENTS FOR 

ESTIMATED TAX PAYMENTS 

(TAXABLE YEARS AFTER 1986) 

The penalty for underpayment 

of estimated income tax will not 

apply if the individual makes 

payments of estimated income tax 

on each installment date for 25 

percent of the lesser of (1) 80 

percent (55 2/3 percent for 

and fishermen) of the 

the current year's 

(2) 100 percent of the 

the preceding year's 

(provided it was a 

year of 12 months and 

individual filed a return 

that year), or (3) 80 



farmers 
tn.x on 
return , 
ta.x on 
return 
ta.xable 
tlio 
for 



(66 2/3 percent 
and fishermen) of 



for 
the 



362 



NORTH CAROLINA REGISTER 



tax figures by annualizing the 
income received during the year 
up to the month in which tlie 
installment is due. Also, no 
penalty for underpayment will be 
due if an individual had no tax 
liability for the preceding 
year. If a required payment is 
computed on the basis of an 
annualized installment and is 
less than the regular required 
installment, the penalty may be 
avoided for that installment 
due; however, the amount that 
the annualized method reduces an 
installment must be recaptured 
by increasing the amount of the 
next required installment which 
is determined under the regular 
method . 

History Note; Statutory 
Authority G.S. 105-163.15; 
105-163.18; 105-262; 
Eff. August 1, 1986. 

SUBCHAPTER 7B - STATE SALES 
AND USE TAX 

SECTION .0100 - GENERAL 
PROVISIONS 

.0101 IMPOSITION OF AND 

LIABILITY FOR COLLECTING 
AND REMITTING TAX 

(a) All retail sales of 
tangible personal property are 
subject to the three percent, 
two percent or the one percent 
sales or use tax unless 
specifically exempt by statute. 
Effective January 1, 1985, the 
gross receipts derived by a 
utility from sales of 
electricity, piped natural gas 
or intrastate telephone service 
are subject to the three percent 
state rate of sales tax, other 
than receipts from the sale of 
electricity by a municipality 
whose only wholesale supplier of 
electric power is a federal 
agency and who is required by 
contract with that federal 
agency to make payments in lieu 
of taxes. The gross receipts 
derived by a utility from sales 
of electricity and piped natural 
gas are not subject to the local 
sales or use tax. Wholesale 
sales are not subject to the tax 
if made pursuant to the 
conditions sot fortli in tlio 
statutory definition of 
wholesale sale. Every person 
making retail sales of taxable 
tangible personal property is 
required to register with the 
department and collect and remit 
all tax due on such sales. 

History Note: Statutory 
Authority G.S. 105-164.4; 
105-164.5; 105-164.6; 



105-262; 

Eff. February 1 , 1976; 

Amended Eff. August 1, 1986; 

February 1, 1986; 

February 8, 1981 ; 

March 15, 1980. 

SECTION .1700 - SALES TO OR BY 
THE STATE: COUNTIES: AND OTHER 
POLITICAL SUBDIVISIONS 

.1702 REFUNDS TO COUNTIES: 

CITIES: ETC.; 
(a) Governmental entities, 
as defined by G.S. 
105-164. 14(c) , are entitled to 
an annual refund of sales and/or 
use taxes paid by them on their 
direct purchases of tangible 
personal property, subject to 
the terms and conditions herein 
set forth. The refund 
provisions of this Rule are not 
applicable to sales taxes 
incurred by employees on 
purchases of food, lodgings or 
other taxable travel e.xpenses 
paid by employees and reimbursed 
by governmental entities. Such 
e.xpenses arc personal to the 
employee since the contract for 
food, shelter and travel is 
between the employee and the 
provider and payment of the tax 
is by the employee individually 
and personally. The 

governmental entity lias not paid 
any sales tax liability. In 
such cases, it lias chosen to 
reimburse a personal expense to 
the employee. The statute 
prohibits the refund of any 
sales ta.x paid on purchases of 
electricity, piped natural gas 
and intrastate telephone 
services. Furthermore, the 
refund provisions of the statute 
are not applicable to the 
occupancy ta>;es which are levied 
and administered by certain 
counties and cities in this 
state. Governmental entities 
and the Federal Government are 
entitled to annual refunds of 
sales and/or use taxes paid in 
North Carolina by their 
contractors on purchases of 
building materials, supplies, 
fixtures, and equipment which 
become a part of or are annexed 
to any building or structure 
being erected, altered or 
repaired under contract with 
such governmental entitites 
which is owned or leased by such 
governmental entities. 

History Note: Statutory 
Authority G.S. 105-164.14 
105-262; 

Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
May 1 , 1985; March 1 , 1984; 
January 1 , 1 982 . 



NORTH CAROLINA REGISTER 



363 



SECTION .2100 - COAL: COKE: FUEL 

OIL: OXYGEN: ACETYLEHE: 

HYDROGEN: LIQUEFIED PETROLEUM 

GAS AND OTHER 

CONBUSTIBLES 

.2101 IN GENERAL 

(a) Sales of electricity, 
piped natural ga.-s, bottled gas, 
coal, coke, fuel oil, oxygen, 
acetylene, hydrogen, liquefied 
petroleum gas or other 
combustibles to users or 
consumers are subject to tlae 
three percent rate of sales or 
use tax except those sales 
exempt from ta.x under the 
provisions of G.S. 105-164.13 
and those sales v;hich are 
subject to the one percent rate 
of tax or are exempt from tax 
under the provisions of G.S. 
105-164.4. The gross receipts 
derived by a utility from sales 
of electricity and piped natural 
gas are not subject to the local 
sales or use ta.x. 

History Note: Statutory 
Authority G.S. 105-164.4; 
105-164.6; 105-164.13; 
105-262; 

Eff . February 1 , 1976; 
Amended Eff. August 1, 1986; 
February 1, 1986; May 1, 1985; 
January 1 , 1 982 . 

SECTION .2400 - VETERINARIANS 

.2401 SALES TO VETERINARIANS 

(a) Veterinarians are 
engaged in rendering 
professional services and are 
the users or consumers of 
medicines or drugs and other 
tangible personal property which 
they purchase for use in 
administering treatment to 
animals. Purchases by 

veterinarians of medicines or 
drugs for use in the treatment 
of pets, such as birds, dogs and 
cats, are subject to sales or 
use ta.x notvjithstanding such 
medicines and drugs may be of 
the type usually sold on tlie 
prescription of a veterinarian. 
Veterinarians should remit tlie 
ta.x due on such purchases to 
their suppliers V/ho collect and 
remit North Carolina sales 
and/or use ta.xos. When such 
purchases are made from 
out-of-state suppliers who do 
not collect and remit the 
applicable sales or use tax, the 
veterinarians arc liable for 
remitting the use ta.x due 
thereon directly to the North 
Carolina Department of Revenue. 
Purchases and sales by 
veterinarians of medicines and 
drugs for use in the treatment 



of livestock and poultry, 
including cattle, horses, mules, 
sheep, chickens, turkeys and 
other domestic animals usually 
found on a farm, and other 
animals or poultry held or 
produced for commercial purposes 
are exempt from sales or use 
tax. 

Cb) Veterinarians who make 
purchases of medicines or drugs 
for use in the treatment of 
livestock, poultry and pets, and 
by reason of the multiple uses 
to be made of the medicines or 
drugs cannot determine the 
application of tax thereto until 
they are used may, in connection 
with such purchases, furnish 
Veterinarian's Certificate, Form 
E-567, to their vendors and 
assume liability for payment of 
the applicable tax to the 
Secretary of Revenue on that 
portion which is used in the 
treatment of pets. 
Veterinarians making purchases 
pursuant to a Veterinarian's 
Certificate, Form E-567, must 
register v;ith the department for 
the purpose of remitting the use 
ta.x due on that portion of such 
medicines and drugs used in 
treating pets . 

(c) Sales to veterinarians 
of medical supplies, including 
such items as cotton, gauze, 
adhesive tape, bandages and 
other dressings and medical 
instruments and equipment, such 
as knives, needles, scissors, 
microscopes, x-ray machines and 
other laboratory equipment used 
for testing and diagnosis, and 
for the prevention, treatment or 
cure of diseases in animals are 
subject to the sales or use tax. 

History Note; Statutory 
Authority G.S. 105-164.4; 
105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
May 11, 1979. 

.2402 SALES BY VETERINARIANS 
(a) Effective July 1, 1985, 
sales of drugs and medicines on 
the written prescription of a 
veterinarian, whether from an 
inventory of medicines and drugs 
maintained by the veterinarian 
or whether by or through an 
independent pharmacy or drug 
store, are exempt from sales or 
use tax. The terms "medicines" 
and "drugs" shall mean medicines 
in the generally accepted sense 
of the term and also includes 
remedies and tonics for internal 
use, vaccines, vitamins, 
ointments, liniments, 

antiseptics and other medicinal 
substances having preventive and 



364 



NORTH CAROLINA REGISTER 



curative properties in the 
prevention, treatment or cure of 
disease in animals. 

(b) When a veterinarian 
maintains an inventory of 
medicines and drugs from which 
sales are made pursuant to a 
veterinarian's written 
prescription, to persons who 
actually receive the medicines 
or drugs for subsequent 
administration, such sales are 
exempt from sales or use tax 
provided adequate records are 
maintained which clearly 
segregate such prescription 
sales . In the absence of a 
written prescription, a copy of 
which is kept on file, 
veterinarians making such 
prescription sales must clearly 
show on the patients' medical 
records, cards or charts the 
diagnosis of the illness or 
ailment, the kind and amount of 
medicines or drugs prescribed, 
the sales price of such 
medicines or drugs and the 
frequency with which such 
medicines or drugs arc to be 
administered to the patient. 
Records must be maintained that 
show charges to customers for 
professional services and such 
records must be kept in a manner 
so that such prescription sales 
of medicines and drugs can be 
related or traced to the 
patients' medical records, cards 
or charts. The foregoing does 
not apply to medicines or drugs 
that are administered by the 
veterinarian to the patient in 
connection with the treatment of 
patients since veterinarians are 
the users of any such medicines 
or drugs so administered. 

(c) Sales of medicines or 
drugs by a pharmacy on the 
written prescription of a 
veterinarian are exempt from 
sales or use tax. Sales of 
medicines and drugs by a 
pharmacy pursuant to a 
veterinarian's telephone (oral) 
prescription are exempt from 
sales or use tax provided the 
prescription is reduced to 
writing, signed by the 
pharmacist and filed in the same 
manner as an original written 
prescription. Medicines or 
drugs sold pursuant to the 
refilling of a veterinarian's 
prescription are likewise exempt 
from tax. Vendors making sales 
of medicines or drugs pursuant 
to a veterinarian's prescription 
or refilling the same must keep 
sales records wliich will clearly 
segregate such prescription 
sales. All original 
prescriptions must be filed and 
kept available for inspection by 



t}ie Secretary of Revenue or her 
authorized agent. 

(d) Veterinarians who maintain 
an inventory for the purpose of 
making sales of medicines, 
drugs, flea powder, soap, pet 
food, dog collars and similar 
items at retail must register 
v;ith the department and collect 
and remit the applicable ta.x on 
such sales. A veterinarian who 
uses tangible personal property 
in rendering professional 
services and also makes sales of 
the same type property may, in 
connection with such purchases, 
furnisli Certificates of Resale, 
Form E-590, to his vendors. The 
veterinarian is then liable for 
remitting the applicable use tax 
on tlio property v;hich is used 
and the applicable sales tax on 
sales of such property to users 
or consumers . 

History Note: Statutory 
Authority G.S. 105-164.4; 
105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
May 1 1 , 1979. 

SECTION .3100 - RADIO AND 
TELEVISION STATIONS: 
MOTION PICTURE THEATRES 

.3106 COMMERCIAL CABLE 

TELEVISION COMPANIES 

(b) Taxable tangible 
personal property purchased by 
cable television companies other 
than towers, antennas and 
purchases of broadcasting 
equipment and parts and 
accessories thereto are subject 
to tax at the rate of three 
percent . 

History Note; Statutory 
Authority G.S. 105-164.4; 

105-164.6; 

105-262; 

Eff. March 1 , 1984; 

Amended Eff. August 1, 1986; 

December 1, 1984. 

S'JBCHAPTER 7C - LOCAL GOVERNMENT 

AND MECKLENBURG COUNTY SALES 

AND USE TAX ACTS 

SECTION .0100 - LOCAL GOVERNMENT 
SALES & USE TAX ACT 

.0103 SALES TAX IMPOSED 

(1 ) the sales price of 

tliose articles of tangible 
personal property now subject 
to tlie three percent sales 
tax imposed by the state 
under G.S. 105-164.4(1) but 
not on sales of electricity, 
piped natural gas or 
intrastate telephone service 



NORTH CAROLINA REGISTER 



365 



taxed under 
105-164. 4(4a); 



G.S. 



History Note: Statutory 
Authority G.S. 105-467; 
105-262; 

Eff . February 1 , 1976; 
Amended Eff. August 1, 1986. 

SECTION .0200 - MECKLENBURG 
COUNTY SALES AND USE TAX ACT 

.0202 SALES TAX IMPOSED 

( I ) the sales price of 

those articles of tangible 
personal property now subject 
to the three percent sales 
ta.x imposed by the state 
under G.S. 105-164.4(1) but 
not on sales of electricity, 
piped natural gas or 
intrastate telephone service 
taxed under G.S. 
105-164. 4(4a); 

History Note: Statutory 
Authority G.S. 105-262; 
Session Laws, Chapter 1096, 
Section 4 (1967); 
Eff. February 1, 1976; 
Amended Eff. August 1, 1986. 

CHAPTER 8 -INTANGIBLE TAX 

SECTION .0400 - ACCOUNTS 
RECEIVABLE 

.0403 ACCOUNTS RECEIVABLE 

SUBJECT TO TAXATION 
(18) delete 

History Note: Statutory 
Authority G.S. 105-201; 
105-262; 

Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
December 1 , 1985; 
December 1 , 1983; 
March 1, 1982. 

.0404 DEDUCTIBLE ACCOUNTS 
PAYABLE 

(II) delete 

(12) certain short term 

notes payable may qualify as 
accounts payable provided 
they were issued or made for 
a term of one year or less 
and are not deducted as notes 
payable under G.S. 105-202. 
(This deduction does not 
apply to notes "payable on 
demand" or tlie current 
portion of long term debt.); 

History Note: Statutory 
Authority G.S. 105-201 ; 
105-262; 

Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
December 1 , 1935; 
December 1 . 1983; 
March 1 , 1982. 



.0405 ACCOUNTS NOT 
DEDUCTIBLE 

(8) floor plan notes which 

are payable on demand or 
which are made for a term of 
more t)ian one year; such 
notes payable are deductible 
under G.S. 105-202; 

(11) notes made for a term of 
more than one year and notes 
"payable on demand" . 

History Note: Statutory 
Authority G.S. 105-201; 
105-262; 

Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
August 1, 1932; March 1, 1982; 
August 31 , 1981 . 

SECTION .0500 - NOTES: BOND 
AND OTHER EVIDENCES OF DEBT 

.0504 NOTES, BONDS, 
ETC. SUBJECT TO TAXATION 
(18) delete 

History Note: Statutory 
Authority G.S. 105-202; 
105-262; 

Eff. February 1 , 1976; 
Amended Eff. August 1, 1986; 
December 1, 1985; 
March 1 , 1982; 
October 30, 1980. 



SECTION .1500 



EXEMPTIONS 



.1505 DOMESTIC TRUSTS FOR 
NONRESIDENTS OR EXEMPT 
ORGANIZATIONS 

(b) "Net income distributed" 
shall mean the net income of a 
trust actually paid to a 
beneficiary or beneficiaries 
during the calendar year. "Net 
income distributable" shall mean 
the net income which by the 
terms of a trust instrument is 
required or authorized to be 
distributed during the calendar 
year, but which has not been 
distributed. Such income, if 
required to be distributed, 
shall be deemed "distributable" 
to the beneficiary to whom it is 
required to be distributed. 
Sucli income, if authorized to be 
distributed at the trustee's 
discretion, shall be deemed 
"distributable" to the 
beneficiaries, whether resident, 
nonresident or exempt 
organization, in equal shares, 
unless the trust instrument 
provides otherwise. 

History Note: Statutory 
Authority G.S. 105-212; 
105-262; 

Eff. February 1, 1976; 
Amended Eff. August 1, 1986; 
November 1 , 1 984 . 



366 



NORTH CAROLINA REGISTER 



TITLE 18 - SECRETARY OF STATE 



SECTION 



,0300 - NOTARY PUBLIC 

EDUCATION PROGRAM 



.0302 INSTRUCTORS 

(a) In order to be certified 

to teach a course of study for 
notaries public, an instructor 
must : 

(1) Complete a six hour 
instructor's course taught 
by the Notaries Public 
Deputy or other person 
approved by the Secretary of 
State with a grade of not 
less than 80; 

(2) have six months active 
experience as a notary 
public; provided that 
registers of deeds, their 
assistants and deputies, 
clerks of court, their 
assistants and deputies and 
practicing attorneys at law 
shall be exempt from this 
requirement ; 

(3) Purchase an approved 
notary public manual. 

(b) Certification shall be 
effective for two years and may 
be renewed by taking a 
recertif icat ion course taught by 
the Notaries Public Deputy or 
other person approved by the 
Secretary of State. 



TITLE 19A - 
SUBCHAPTER 2E 



TRANSPORTATION 

MISCELLANEOUS 
OPEPJ\TIONS 



SECTION .0300 - SOLICITATION OF 
CONTRIBUTIONS FOR 
RELIGIOUS PURPOSES 
AT REST AREAS 

.0802 PERMITS REQUIRED 

(a) All organizations desiring 
to solicit under the provisions 
of this Section must first 
obtain a permit from the 
Department of Transportation for 
the stated purpose of allowing 
their members to solicit at 
designated areas on the state 
highway system. 

(b) Written requests for 
permits for religious 
solicitation shall be sent to 
the Office of the State Highway 
Administrator of the North 
Carolina Department of 
Transportation . 

(c) Written requests must 
include all of the following: 

(1) copy of certificate 

showing that the applicant 
is exempt from federal 
income ta.x as a religious, 
educational or charitable 
organization as provided in 
26 use 501(c)(3) together 



with the applicant's tax 
exemption number; 

(2) a statement indicating 
the locations v;here the 
organization intends to 
solicit contributions; 

(3) tlie name and address 

of each individual 
authorized to solicit for 
tlie applicant ; 

(4) the name of an officer 

of the applicant, together 
with an address, to whom the 
permit is to be sent and 
complaints are to be 
directed; 

(5) if the request for 

a permit is from a 
non-religious educational or 
charitable organization, a 
detailed written description 
of the organization's past 
efforts serving and 
promoting the safety of the 
traveling public. 

(d) Iv'hen all the appropriate 
information required in 
Paragraph (c) of this Rule has 
teen provided by tlio applicant, 
a permit shall be issued by the 
State Highway Administrator, or 
his duly authorized 
representative, and said permit 
will be effective for a period 
of thirty days from the date of 
issuance . 

(e) Each permit issued 

shall describe the activity 
authorized, the area in which it 
may be conducted, and the period 
of time for which the permit is 
issued . 

History Note: Statutory 
Authority G.S. 20-175; 
136-18; 

Eff. November 1, 198-^; 
Amended Eff. September 1, 1986; 
August 1, 1986; 
September 1, 1985. 

TITLE 26 - OFFICE OF 
ADMINISTRATIVE HEARINGS 

CHAPTER 2 - RULES DIVISION 

SUBCHAPTER 2A - NCAC 



SECTION .0200 



GENERAL FILINGS 
REQUIREMENTS 



.0201 ADOPTION OF RULES 
(e) If the adopted rule 
differs in anyway from the 
proposed rule published in the 
North Carolina Register, the 
filing shall be accompanied by a 
copy of the proposed rule as 
submitted for publication n ot ing 
•H-re clianges b et v;ccn -tiTt; proposed 
r ule ctrrd tl i e ad o p ted rule with 
clianqes identified by striking 
tlirouqh deleted portions in a 



contrast incT 



color 



and 



NORTH CAROLINA REGISTER 



367 



highlighting added portions in a 
different contr a sting color, and 
a statement of the volume, issue 
and page or pages of the notice 
publication . 

.0203 REPEAL OF RULES 

( b ) The oi" ig m nl and one copy 
o-f a s t atcmc n-b trf rep e al s hall 
bt; fil e d rri^+r irhe O ffi ce trf 
A- dminii^ t ra t ive Hearings . Th e 

original shs l l brc xn p r o p e r -farm 
srs requiYtrtt fay Rul e . O ^i OS trf 

(b) In order to be acceptable 



Administrative 



Code 



accordance 



with 



for f 


il ing 


with 


the 


Off 


ice 


of 


Admini 


strat 


ive 


Hearings , 


a 


statement o 


f a repeal 


of 


a r)) 


Ic 


shall 


be 


acco 


mpanied 


by 


a 



Submission of Filing form. 

( c ) in o-rtter to bu acccp bable 
ftrr filing vrirth t-he O ffi ce o-f 
A dmin istra trrrrt? Hea r ings , a 
s^ at cmcnt tyf a repeal tTX a rule 
sliall fac accompani e d by a 

(c) The original and one copy 



of 


a statement 


of repeal shall 


be 


filed witli 


the 


Office 


of 


Administrative 


Hearings . 


The 


or 


iginal shall 1 


5e in 


proper form 


as 


required bv 


Rul 


e .0402 


of 



this Subchapter. 

.0204 REQUEST FOR TRANSFER 

(b) The request for 
recodification sliall be 
submitted to the Office of 
Administrative Hearings on a 
Transfer and Recodification form 
and accompanied by a table of 
contents setting out the 
catchline and number for each 
rule for each section affected 
by the requested transfer. 

.0207 RULE SUMMARIES 
For distribution and 
publication purposes, the Gi ii c f 
Hcai'ing B-E^f-ircxrv Cl tief 

Administrative Law Judge of the 
Office of Administrative 
Hearings has statutory 
authority to summarize rules 
which he judges v;ould be 
impracticable to distribute or 
to publish in full. An agency 
viith rules whicli it believes 
would be impracticable to 
distribute or publish may 
request that the Chief H earing 
Office r Chief Administrative 
Law Judge examine such rules. 
If he determines that the 
submitted rules are 
inappropriate for distribution 
or publication, lie may allo v; 
request the agency to draft a 
summary rule . ami file The 
full rule or rules -irt t+redT- 
er^ is t in g f cn-m o-r su c h other 
ftrrm rrrs he nay specify . must 
be filed and the summary 
published in the North Carolina 



requirements . 
SECTION .0300 



statutory 



TEMPORARY 
RULEMAKING 



0302 SUBMISSION FOR FILING 
FORM 

porary rule that is 
all be filed vrrth a 
ed by a Submission for 



Each 


tem 


filed 


sh 


accomp 


am 


Filing 


fo 


than 


one 


includ 


ed 


they 


are 


reason 


, t 


same 


dat 


period 


of 



rm; provided that , more 

temporary rule may be 

on the same form if 

filed for the same 

o be effective on the 

e, and for the same 

time . 



SECTION .0400 - PHYSICAL FORMAT 

.0402 ORIGINAL COPY OF RULES 
(c) Repealed rules shall be 
combined with a single 
history note if the rules 
are consecutive numerically 
and the effective dates and 
proposed repealed dates are 
identical. Authority cites 
and any other dates are to 
be combined. 

.0405 HISTORY NOTE 

(c) Authorities cited in 

history notes shall be cited 

according to the most current 

edition of the rules of citation 

in "A Uniform System 

(n t h Ettv 1967) 

is available in 



contained 

of Citation", 

copy of which 

tl\e Office of Administrative 
Hearings , except that the 
General Statutes of North 
Carolina shall be identified by 
the designated "G.S." rather 
than "N.C. Gen. Stat.". 

.0406 HISTORY NOTE: 

TEMPORARY ADOPTIONS; 
AMENDMENTS: REPEALS 

(a) A temporary rule adoption 
will have a history note V'jhich 
starts with the follovjing 
statement: "Filed as a 
Temporary Rule Eff. (date), for 
a Period of (length) Days to 
E.xpire on (date)". The ne.xt 
line would then contain the 
citation of authority. 

SECTION .0500 - CODIFICATION 
OF RULES 

.0501 CODIFICATION SYSTEM 
(a) All rules to be filed 
with the Office of 
Administrative Hearings shall be 
codified within the system 
dcscriLed in this Section. t 
wiiich has b ee n ad opt ed by tho 
Of fice trf Admini i j ti a t Ive 
Hear ings ftrr co difi c a t i o n o-f t+re 



368 



NORTH CAROLINA REGISTER 



N o r t h Carolina Adminis Li ativ e 
C o de. 

(b) The North Carolina 
Administrative Code has four 
major subdivisions of rules. 
Tvjo of these, titles and 
chapters, are mandatory. The 
major subdivision of the North 
Carolina Administrative Code is 
the title. Each major 
department in the North Carolina 
executive branch of government 
has been assigned a title 
number. Titles are further 
broken down into chapter.-; which 
shall be numerical in order. 
The other two, subchapters and 
sections are optional 
subdivisions to be used by 
agencies when appropriate. 

(d) The official citation to 
■a rule in the North Carolina 
Administrative Code identifies 
the r ul e material cited by 
title, chapter, or subchapter 
(if any), and section, or rule 
number. 6 nc c codifi e d, a I ' ulc 
numbe r mtrjr ntrb bx; c liang e d . This 
number is permanen t sntl l e maiii:;. 
evert when -H-re rule i-s repealed . 

.0505 RULE 

The rule is represented by the 
second two digits of the four 
numbers following a decimal. 
Rules shall be numbered 
consecutively. star t ing wi-bh 
Rul e .0101 . The last two digits 
of the first rule will be "01". 



SECTION 



,0700 - 

COMPUTER 

E LECTRONIC 

FILINGS 



.0701 RULES FILED THROUGH 
ATMS COMPUTER SYSTEM 

(c) In using this process, 
the agency shall submit with the 
filing a Computer Electronic 
Filing form. The Office of 
Administrative Hearings shall 
return a copy of the form 
notifying the contact person 
wirth of the transmittal date. 
At this time, the agency may 
delete the document from its 
storage . 

SUBCHAPTER 2B - NORTH CAROLINA 
REGISTER 



SECTION .0300 



PHYSICAL FORMAT 



.0302 ORIGINAL COPY OF 
PROPOSED 
AB OPTIONS 
RULES 

SECTION .0400 - ELECTRONIC 
FILINGS 

.0401 SUBMISSIONS THROUGH 
ATMS COMPUTER SYSTEM 



(c) In using tliis process, 
the agency shall submit with the 
filing an Electronic Filing 
form. The Office of 
Administrative Hearings shall 
return a copy of the form 
notifying the contact person 
T.rith p^ the transmittal date. 
Upon receipt of the form 
containing the transmittal date, 
the agency may delete the 
document from its storage. 



CHAPTER 3 - HEARINGS DIVISION 

.0001 GENERAL 
Governed by the principles 
of fairness, uniformity, and 
pvinctual ity , the following 
general rules apply: 

(1) The Rules of Civil 

Procedure as contained in 
G.S. 1A-1 and the General 
Rules of Practice for the 
Superior and District Courts 
as autliorizod hy G.S. 7A-34 
an d found in the Rules 
Volume of the North Carolina 
General Statutes shall apply 
in contested cases in the 
Office of Administrative 
Hearings ( OAH ) unless 
another specific statute or 
rule of the Office of 
Administrative Hearings 
provides otherwise. 

.0002 DEFINITIONS AND 
CONSTRUCTION 

(a) The definitions contained 
in G.S. 150B-2 are incorporated 
herein by reference. In 
addition, the following 
definitions apply: 

( 1 ) ^^hi^f H e a r in g Officer" 
"Chief Administrative Law 
Judge" means the Director of 
the Office of Administrative 
Hearings appointed according 
to G.S. Chapter 7A, Article 
60. 

(3) "Hearing Officer" means 
t+rc pe r s on assign e d fay th« 
6 1 - 1 ief H e aring Officer , 
pursuan t to G . G . Cha p t e r 9-Prr 
Ar t icl e frO-r tnrd G . G . 

150D 32, -to h e a r the 
c on te s te d case . an 
Administrative Law Judge 
appointed undor G.S. 7A-753, 
o r a Temporary Hearing 
Offi c er appointed under G.S. 
7 A-757. assigned by the 
C l^iof Administrative Law 
Judge to conduct a contested 
case . 

.0003 COMMENCEMENT OF 
CONTESTED CASE: 
NOTICE 

(b) Within 5 days of the 
filing of a petition found 
sufficient by the Office of 



NORTH CAROLINA REGISTER 



369 



Administrative Hearings to 
commence a contested case, the 
Slrixrf il e si ' ing ©-ff^rctrr Chief 
Adm i nistrative Lav; Judge shall 
assign a hearing officer to tlie 
case . Within 1 days of tlic 
filing of a petition commencing 
a contested case, the Executive 
Secretary of the Office of 
Administrative llearings shall 
serve a Notice of Contested Case 
Filing and Assignment upon all 
who are parties to the dispute. 
The notice shall contain the 
following : 
(b) 
(4) A request 

•for" a vii itt e n r e spons e -to 
t+re p e t i t i o n wi t lti n +9 tkry^ 
erf s ervi ce trf t+n? N o tice erf 
&onte;;ted Cas e Fil ing and 
Assi g n rr en t . t hat the party 
send v;ithin 10 days a copy 



of 


the 


document 


const it 


ut in 


q 


agency 


act 


ion 


which 


cauG 


e 


the fil 


inq 


of th 


e petit 


ion . 





.0004 ORDER FOR PREHEARING 
STATEMENTS 
The hearing officer may 
serve all parties with an Order 
for Prehearing Statements 
together with or after service 
of the Notice of Contested Case 
Filing and Assignment. The 
parties thus served shall, 
within SO 30 days of service, 
file the requested statements 
setting out the party's present 
position on the following: 

.0007 SETTLEMENT 
CONFERENCE 

(b) Upon the request of any 
party or the hearing officer, 
the Chi e f ilc a r ing Off icer Chief 
Administrative Lav; Judge shall 
assign the case to another 
hearing officer for the purpose 
of conducting a settlement 
conference. Unless both parties 
and the liearing officer agree, a 
unilateral request for a 
settlement conference will not 
constitute good cause for a 
continuance. The conference 
shall be conducted at a time and 
place agreeable to all parties 
and the hearing officer. It 
shall be conducted by telephone 
if any party would be required 
to travel more than 50 miles to 
attend, unless tliat party agrees 
to travel to the location set 
conference. If a 
conference is 
the parties must be 
by telephone at tlie 



for tlio 

telcplione 

scheduled , 

available 

time of the conference. 



.0008 PREHEARING 

CONFERENCE/NOTICE 
(b) Upon the request of any 



party or upon the hearing 
officer's own motion he may hold 
a prehearing conference prior to 
each contested case hearing. 
The hearing officer may require 
tlie parties to file prehearing 
statements in accordance with 
Rule .0004 of these Rules. A 
prehearing conference shall be 
an informal proceeding conducted 
expeditiously by the hearing 
officer. Agreements on the 
simplification of issues, 
amendments, stipulations. or 
other maters may be entered on 
the record or may be made the 
subject of an order by the 
hearing officer. The hearing 
officer shall give the parties 
not less than 15 days notice 
before the scheduled date of a 
prehearing conference. Venue 
for purposes of a prehearing 
conference shall be determined 
in accordance v;ith G.S. 150B-24. 

.0009 NOTICE OF HEARING 
(a) 

(5) Notification of the 

right of a party to 
represent himself, to be 
represented by an attorney, 
or to be represented by a 
person o-f hxs c h o ic e -if ntrt 
ot h e rwis e pv o liibi t ed as t+rc 
tiTrattt h or i zc d prac t ic e trf 
law; authorized to do so by 
specific State Statute or 
federal law: 

(10) A statement advising 
the parties that a notice of 
ap pe a r an c e, representation , 
containing the name of 
counsel or 
representatives, 
must be filed 
hearing officer 
days of the date of service 
of the Notice of Hearing -i-f 
a par t y in t ends -to app e a r atr 
t+rc liea r i '. g ; and 

.001 1 CONSOLIDATION OF 
CASES 

(a) The Chi e f Hearing Officer 
Chief Administrative Law Judge 
of the Office of Administrative 
Hearings may order a joint 
liearing of any matters at issue 
in contested cases involving 
common questions of law or fact 
or multiple proceedings 
involving the same or related 
parties, or may order the cases 
consolidated or make other 
orders to reduce costs or delay 
in the proceedings. In 
consolidated cases in the 
Department of Human Resources 
involving multiple aggrieved 
persons, the Ch-iirf Heari ng 
eff-it:trr Chi ef Administrative L nvi 
Judge shall assign hearing 
officers of the Office of 



other 

if any, 

with the 

within 10 



370 



NORTH CAROLINA REGISTER 



Administrative Hearings in 
accordance with G.S. 150B-26. 

(c) Upon determining whether 
cases should be consolidated, 
the Cl i i ef Hearing 6- f f iccr Chief 
Administrative Law Judge shall 
serve a written order on all 
parties which contains a 
description of the cases for 
consolidation and the reasons 
for the decision. 

(d) Nothing contained in this 
Rule shall be deemed to prohibit 
the parties from stipulating and 
agreeing to a consolidation 
which shall be granted upon 
submission of a written 
stipulation signed by all tlie 
parties to the & hi c f llc - arin g 
O ffi c e r . Chief Administrative 
Law Judge . 

(e) Following receipt of a 
notice of or order for 
consolidation, any party may 
petition for severance by 
serving it on all other parties 
and filing it with the Office of 
Administrative Hearings at least 
7 days prior to the first 
scheduled hearing date. If the 
Chief Hearing Offi c e r Chief 
Administrative Law Judge finds 
that the consolidation will 
prejudice any party, he shall 
order the severance or other 
relief which will prevent the 
prejudice from occurring. 

.0012 DISCOVERY 

(g) Sanctions for failure of 
of a party to comply with an 
order of the hearing officer 
made pursuant to the discovery 
rules of this Chapter shall be 
as provided for by G.S. 1A-1, 
Rule 37, to the extent that a 
hearing officer may impose such 
sanctions , and Rule .0014 of 
this Chapter. 

.0013 SUBPOENAS 

(a) Requests for subpoenas 
for the attendance and testimony 
of witnesses or for the 
production of documents, either 
at a hearing or for the purposes 
of discovery, shall be made in 
writing to the hearing officer, 
si' iall co ntain a b rief st a t em ent 
tk: mon::: t ra t ing t+rer p ot en t ial 
relevance o-f t-hc te s t imony trr 
e videnc e s ough t-r shall identify 
any documents sought v;ith 
specificity, shall include the 
full name and home or business 
address of all persons to be 
subpoenaed and, if known, the 
date, time, and place for 
responding to the subpoena. 
Upon receiving such written 
request or upon Iiis own motion, 
the hearing officer shall issue 
the requested subpoenas. 

(c) Objection to Subpoena 



( 1 ) Upon receipt of a written 
request for the revocation 
of a subpoena, the hearing 
officer sliall schedule and 
conduct a hearing on the 
motion. w i t h n ot l e ss t+ran 
5 dtry-s ntrt ice tro irVrc pa rt i e s 
o-f t-hc da te ■ t ime , and plac e 
tyf tire h e a r ing . The hearing 
officer sliall quash the 
subpoena if he finds that it 
is invalid according to law 
on grounds of relevancy, 
lack of particularity, or 
for any other legal 
insufficiency . 

.0014 SANCTIONS 

(b) In the event that any 
party or attorney at law or 
other representative of a party 
engages in behavior that 
obstructs the orderly conduct of 
proceedings or would constitute 
contempt if done in the General 
Court of Justice, the hearing 
officer presiding may refer ■Hre 
ma-irtcr to ttre Cl i ief Hearing 
erf*i-«rr of the Offic e of 
A dminis t ra t iv e Hearings who mzsy 
oondttcc such invest igat ion a^ h^ 
deems n ece ssary arrd decid e 
wiTcrthtrr t+rc ma tte r should be 
r efer r ed to ■ ( 1 ) apply to the 
Superior Court for contempt 
proceedings in accordance with 
G.S. 150B-33(b)(8) or may refer 

the matter to ( 2 ) the 

Disciplinary Hearing Commission 
of tlie North Carolina State Bar 
, or both . 

.0015 MOTIONS 

(a) Any application to the 
hearing officer for an order 
shall be by motion which shall 
be in writing, unless made 
during a hearing, and must be 
filed and served upon all 
parties not less than 10 days 
before the hearing, if any, is 
to be held either on the motion 
or the merits of the case. The 



nonmovinq 


P 


ar 


•tv s 


hr^ll 


have 


10 


days 


from 


th 


le 


date 


of service 


: of 


the 


motion 


t 


o file a 


response 


v.'hic 


h sha^ 


11 


b 


e in 


writ 


inq . 


The- 



nrit'ircTt mo t i o n sttaii advise 
o-trl«rr p ar t ies ttrrrir o ppo s i t ion fo 
t^he mot ion must be "dm the form 
trf a w i- i t te n r e spons e f ile tt w-it+i 
t-Ire h e ar i n g o f f i cc i ' arrti s erved 
on jrii pa rt i e s not- l e ss "HraTt 5 
da ys bxr i o v c ttre hre ar ing or- 
disp o si t i on da te r e quested -in 
■tiTe mov an t ' s m ot i o n . Motions 
practice in contested cases 
before the Office of 
Administrative Hearings shall be 
governed by Rule 6 of the 
General Rules of Practice for 
the Superior and District 
Courts . 



NORTH CAROLINA REGISTER 



371 



.0018 CONTINUANCES 
( a ) Requests for a continuance 
of a licaring shall be granted 
upon a shelving of good cause . 
Unless time does not permit, a 
request for continuance of the 
hearing shall be made in writing 
to the hearing officer and sliall 
be served upon all parties of 
record. In determining v;hether 
good cause exists, due regard 
shall be given to the ability of 
the party requesting a 
continuance to effectively 
proceed v/ithout a continuance. 
A request for a continuance 
filed within 5 days of the 
hearing shall bo denied unless 
the reason for the request could 
not earlier have been 
ascertained . 

(1 ) "Good cause" shall 

include ■ but is not limited 
to : death or incapacitating 
illness of a party, 
represenative , or attorney 
of a party; a court order 
requiring a continuance; 
lack of proper notice of the 
hearing; a substitution of 
the representative or 
attorney of a party if the 
substitution is shown to be 
required; a change in the 
parties or pleadings 
requiring postponement, and 
agreement for a continuance 
by all parties provided that 
it is shown that more time 
is clearly necessary to 
complete authorized 

discovery or other mandatory 
preparation for the case and 
the parties and the hearing 
officer have agreed to a nevi 
hearing date, or, the 
parties have agreed to a 
settlement of the case which 
has been or will likely be 
approved by the final 
decision maker. 
(2) "Good cause" shall not 
include: intentional delay; 
unavailability of counsel or 
other representative because 
of engagement in another 
judicial or administrative 
proceeding unless all otlier 
members of the attorney's or 
representative's firn 
familiar witn the case are 
similarly engaged, or if the 
notice of the other 
proceeding was received 
subsequent to the notice of 
the hearing for which the 
continuance is sought; 
unavailaliil ity of a v;itncss 
if the witness testimony can 
be talcen by deposition, ai.d 
failure of the attorney or 
representative to properly 
utilize the statutory notice 



period to prepare for the 
hearing . 

( b ) During a hearing, if 
it appears in the interest of 
justice that further testimony 
sliould be received and 
sufficient time does not remain 
to conclude tlie testimony, the 
hearing officer shall either 
order the additional testimony 
taken by deposition or continue 
tlie hearing to a future date and 
oral notice on the record shall 
be sufficient . 

( c ) A continuance shall not 
be granted when to do so v;ould 
prevent the case from being 
concluded within any statutory 
or regulatory deadline. 

.0019 RIGHTS AND 

RESPONSIBILITIES 

OF PARTIES 
(e) 
Nonpa rt ies 



With the approval of the 
liearing officer, any person 
may offer testimony or other 
evidence relevant to the 
case. Any nonparty offering 
testimony or other evidence 
may be questioned by parties 
to the case and by the 
hearing officer. 
(2 ) T-ire lija r ing o ffic e r rrray 
allow nonparties t-o quest ion 
witnessc ' S -irf d e em e d 
n e cessa r y -fxrr t+re 

dev e l op men t trf a full and 
comple t e record. 

.0022 OFFICIAL RECORD 

(2) Transcripts of proceedings 
during vjhich oral evidence is 
presented will be made only 
upon request of a party. The 
requesting party shall pay 
the cost of such transcript 
or copy thereof that the 
party orders and this cost 
shall include the cost of an 
original for the Office of 
Administrative Hearings. 
Cost shall be determined 
under supervision of the 
Chief liearin g Offi ce r Chief 
Administrative Law Judge who , 
in cases deemed appropriate 
by hin, may require an 
advance security deposit to 
cover the prospective cost. 
The security deposit shall be 
applied to the actual cost 
and any excess shall be 
returned to the party which 
submitted it. 

.0023 VENUE 

Venue in a contested case 
sliall be determined in 
accordance with G.S. 150B-24. 

.0025 HEARING OFFICER'S 



372 



NORTH CAROLINA REGISTER 



PROPOSAL FOR DECISION: Jurlgo may extend the tinie 

EXCEPTIONS limits for submission of the 

(b) The heni'ing officer's proposed decision, filing of 

proposed decision shall be based exceptions, and for issuing 

exclusively on: the recommended decision of 

i'i) Any otlicr itens in the tlie hearing officer. 
official record not excluded 

by G.S. 150B-29(b) . .0027 EX PARTE 

COMMUNICATIONS 

.0026 HEARING OFFICER'S Ex parte comnunicnt ions 

RECOMMENDATION in a contested case are governed 

(1) Upon good cause shown, by G.S. 150B-35. 
the G ^ii c f Hair in g Offic er 
Chief Administrative Law 



NORTH CAROLINA REGISTER 373 



NORTH CAROLINA ADMINISTRATIVE CODE 
LIST OF RULES AFFECTED 



EDITION X, NO. 5 

AGENCY 



EFFECTIVE: August 1, 1986 
ACTION TAKEN 



CORRECTION 










5 KCAC 


2B 


.0104 




Amended 


CULTURAL RESOURCES 








7 NCAC 


3A 


.0001- 


.0002 


Amended 






.0003- 


.0008 


Repealed 




3C 


.0101- 


.0105 


Repealed 






.0301- 


.0307 


Repealed 






.040 1- 


.0406 


Rcpaaled 






.0601- 


.0605 


Repealed 






.0901- 


.0904 


Repealed 






.1001- 


. 1004 


Repealed 






.1101- 


. 1 103 


Repealed 






.1201 




Repealed 






.1203 




Repealed 






.1205 




Repealed 






. 1401- 


. 1406 


Repealed 






.1501- 


. 1506 


Repealed 






.1601- 


. 1605 


Repealed 






.1701- 


.1708 


Repealed 






.1801- 


. 1805 


Repealed 






. 1901- 


. 1904 


Repealed 






.2001- 


.2005 


Repealed 






.2101- 


.2104 


Repealed 




3D 


.0001- 


.0011 


Repealed 


HUMAN RESOURCES 










1 NCAC 


26D 


.0001 
.0006 




Amended 
Amended 


INSURANCE 










1 1 NCAC 


8 


.0204- 


.0207 


Amended 


NATURAL RESOURCES 


AND 


COMMUNITY DEVELOPMENT 


15 WCAC 


3B 


.0504 
.0601 
.0602 
.0603 
.1002 
.1403 




Amended 

Repealed 

Amended 

Repealed 

Amended 

Amended 






. 1406- 


1408 


Adopted 




7J 


.0405 




Amended 


REVENUE 










17 NCAC 


5C 


.2501- 


2504 


Adopted 




6B 


.0104 
.0303 




Amended 
Amended 






.0316- 


0319 


Adopted 






.0501 




Amended 






.0502- 


0520 


Repealed 






.0602- 


0603 


Amended 






.0704 




Amended 






.0902 




Amended 






. 1402 




Amended 






. 1706 




Amended 






.1748 




Amended 






. 1749- 


1752 


Adopted 






. 1902 




Amended 






.2502 




Amended 






.2604 




AiTicndcd 






.2805- 


2806 


Amended 






.3005- 


3006 


Amended 






.3406 




Amended 






.3709 




Amended 



374 



NORTH CAROLINA REGISTER 









.3801- 


.3803 


Amended 






6C 


.0109 




Amended 






6D 


.0101- 

.0201 

.0205 


.0102 


Amended 
Amended 
Adopted 






7B 


.0101 
. 1702 
.2101 




Amended 
Amended 
Amended 








.2401- 


.2402 


Amended 








.3106 




Amended 






7C 


.0103 
.0202 




Amended 
Amended 






8 


.0403- 

.0504 

.1505 


.0405 


Amended 
Amended 
A.mended 


TRANSPORTATION 










19A 


NCAC 


2B 


.0312 




Amended 






2D 


.0412- 


.0413 


Repealed 






2E 


.0407 




Amended 








.0801- 


.0804 


Amended 


CERTIFIED 


PUBLIC ACCOUNTANTS 


BOARD 




21 


NCAC 


8G 


.0201- 


.0202 


Amended 








.0208- 


.0210 


Amended 








.0211 




Adopted 






8J 


.0007 




Amended 


OFFICE OF 


ADMINISTRATIVE HEARINGS 




26 


NCAC 


1 


.0001 




Adopted 






2A 


.0101- 


.0102 


Amended 








.0201- 


.0207 


Amended 








.0209- 


.0210 


Amended 








.0301- 


.0302 


Amended 








.0401- 


.0406 


Amended 








.0501 




Amended 








.0505 




Amended 








.0601- 


.0602 


Amended 








.0701 




Amended 






2B 


.0101- 


.0104 


Adopted 








.0201- 


0204 


Adopted 








.0301- 


0302 


Adopted 








.0401 




Adopted 






3 


.0001- 


0029 


Adopted 



NORTH CAROLINA REGISTER 375 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT 

1 Administration, Department of 

2 Agriculture, Department of 

3 Auditor, Departnent of State 

4 Commerce, Depart:iic-nt of 

5 Corrections. Department of 

6 Council of State 

7 Cultural Resources , Department 

8 Elections, State Board of 

9 Governor 

10 Human Resources. Department of 

11 Insurance. Department of 

12 Justice. Department of 

13 Labor, Department of 

1 4A Crime Control, Department of 

15 Natural Resources and Community Development 

16 Education, Department of 

17 Revenue, Department of 
IS Secretary of State 

1 9A Transportation, Department of 

20 Treasurer, Department of State 

X21 Occupational Licensing Boards 

22 Administrative Procedures 

23 Community Colleges, Department of 

24 Independent Agencies 

25 Personnel, Department of State 

25 Office of Administrative Hearings 

NOTE; Title 21 contains the chapters of the various 
occupational licensing boards. 



CHAPTER 

2 

4 

6 

8 
10 
12 
14 
16 
13 
20 
21 
22 
26 
28 
30 
31 
32 
33 
34 
36 
37 
38 
40 
42 
44 
46 
48 
50 
52 
53 
54 
56 
58 
60 
62 
64 

66 



LICENSING BOARD 

Architecture, Board of 

Auctioneers, Commission for 

Barber Examiners, Board of 

Certified Public Accountant Examiners 

Chiropractic Examiners, Board of 

Contractors, Licensing Board for 

Cosmetic Art Examiners, Board of 

Dental Examiners. Board of 

Electrical Contractors, Board of Examiners 

Foresters, Board of Registration for 

Geologists. Board of 

Hearing Aid Dealers and Fitters Board 

Landscape Architects, Licensing Board of 

Landscape Contractors, Registration Board of 

Law Examiners. Board of 

Martial & Family Therapy Certification Board 

Medical Examiners, Board of 

Midv;ifery Joint Committee 

Mortuary Science, Board of 

Nursing, Board of 

Nursing Home Administrators, Board of 

Occupational Therapist, Board of 

Opticians, Board of 

Optometry, Board of Examiners in 

Osteopathic Examination and Registration 

Pliarmacy. Board of 

Physical Tliorapy, Examining Committee of 

Plumbing and Heating Contractors, Board of 

Podiatry Examiners, Board of 

Practicing Counselors, Board of 

Practicing Psycliologists , Board of 

Professional Engineers and Land Surveyors 

Real Estate Commission 

Refrigeration Examiners, Board of 

Sanitarian Examiners, Board of 

Speecji and Language Patliologist s and 

Audiologist s . Board of Examiners of 
Veterinary Medical Board 



376 



NORTH CAROLINA REGISTER 



CUMULATIVE INDEX 
(April 1, 1986 - March 31, 1987) 



19S6 

Pages Issue 

" 1-73 April 

74-97 May 

98-132 June 

133 - 222 July 

223 - 373 August 

AO - Administrative Order 

E - Errata 

EO - Executive Order 

FDL - Final Decision Letters 

FR - Final Rule 

GS - General Statute 

JO - Judicial Order 

LRA - List of Rules Affected 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary Rule 

ADMINISTRATIVE ORDERS 
Beecher Reynolds Gray, 47 AO 
Fred Gilbert Morrison, Jr., 48 AO 
Angela Rebecca Bryant. 49 AO 
Thomas R. Kest, 50 AO 
Abraham Penn Jones, 98 AO 
Administrative Law Judges, 248 AO 

AGRICULTURE 
Food and Drug Protection Division, 99 PR, 255 PR 
Plant Industry, 256 PR 

COMMERCE 
Milk Commission, 74 PR, 135 PR, 260 PR 
Savings and Loan, 78 PR 

COMMUNITY COLLEGES 
Community Colleges, 210 PR 

CORRECTION 
Division of Prisons, 213 FR, 347 FR 

CULTUR.fvL RESOURCES 
Archives and History, 78 PR 
Roanoke Voyages & Eliz. II, 261 PR 

EXECUTIVE ORDERS 
Executive Orders 1-25, 23 EO 

26, 247 EG 

FINAL DECISION LETTERS 
Voting Rights Act, 249 FDL 



Chapter 7A, 21 GS , 244 GS 
Chapter 150B, 3 GS , 226 GS 
Chapter 1028, 223 GS 



Child Day Care, 281 PR 
Children Services, 103 PR 
Facility Services, 270 PR 
Food Assistance, 103 PR 
Health Services, 169 PR 



GENEFJ\L STATUTES 



HUMAN RESOURCES 



NORTH CAROLINA REGISTER 377 



Individual and Family Support, 103 PR 
Medical Assistance, 181 PR 
Medical Services, 101 PR 
Mental Health Retardation 

and Substance Abuse, 80 PR, 298 PR, 350 FR 
Youth Services, 35 PR, 309 PR 



INSURANCE 



Agency Services, 313 PR 
Engineering & Building, 321 PR 



Appointment 

Robert A. Melott, '^5 JO 



JUDICIAL ORDERS 



JUSTICE 



Education and Training Standards, 322 PR 
Police and Information Networlc, 107 PR 
Sheriff's Education, 332 PR 

LABOR 
Boiler and Pressure Vessel, 86 PR, 189 PR, 338 PR 

LICENSING BOARD 
C P A Examiners, 112 PR 
Medical Examiners, 92 PR 
Occupational Tliorapy, 206 PR 
Pharmacy, 208 PR 

Plumbing and Heatjng Contractors, 116 PR 
Veterinary Medical Board, 341 PR 

LIST OF RULES AFFECTED 
Volume 10, No. 1 
(April 1 , 1986) , 71 LRA 
Volume 10, No. 2 
(May 1 , 1986), 94 LRA 
Volume 1 , No . 3 
(June 1 , 1986), 127 LRA 
Volume 10, No. 4 
(July 1 , 1986), 217 LRA 
Volume 10, No. 5 
(August 1, 1986), 374 LRA 

NATURAL RESOURCES AND COMMUNITY DEVELOPMENT 
Coastal Management, 1 1 2 FR 
Departmental Rules, 109 PR, 1 1 8 FR 
Employmental and Training, 111 PR 
Environmental Management, 88 PR, 190 PR, 339 PR 
Forest Resources, 126 FR 
Marine Fislicries, 191 PR 
Soil and V/ater, 90 PR 
Wildlife Resources and Water Safety, 110 PR, 205 PR, 340 PR 

OFFICE OF ADMINISTRATIVE HEARINGS 
General, 52 PR, 345 PR 

Hearings Division, 61 PR, 345 PR, 369 FR 
Rules Division, 52 PR, 367 FR 

REVENUE 
Corporate Income Tax, 350 FR 
Individual Income Ta.x , 351 FR 
Intangible Tax, 366 FR 
Sales & Use Tax, 363 FR 

SCCRLTAKY OF STATE 
Notary Public, 91 PR, 367 FR 

STATE PERSONNEL 
State Personnel Commission, 343 PR 

STATEMENTS OF ORGANIZATION 
Agriculture, 250 SO 
CPA Examiners, 133 SO 

378 NORTH CAROLINA REGISTER 



Natural Resources and Community Develorment , 133 SO 
Office of Administrative Hearings, 51 SO 

TRANSPORTATION 
Department of Transportation, 2.13 FR , 367 FR 



NORTH CAROLINA REGISTER 



379 



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99911 j3A\Bja O d 

sSuuB3H aAUBJjSjuiiupv Jo aoiJiO 



y3H 

"JVIS 



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